Related Sector: Health & Social Care

NICE Guidelines

Decision-making and mental capacity

In October, the National Institute for Health and Care Excellence (NICE), having been commissioned by the Department of Health, issued guidance on the implementation of the Mental Capacity Act 2005.

Please click here to view the full guidance

The guidance is designed to complement the Act and their associated Code of Practice to seek to ensure best practice. The guideline focuses on the following key areas:

  • advance care planning
  • supporting decision-making
  • assessment of mental capacity to make specific decisions at a particular time
  • best interests decision-making for individuals who are assessed as lacking capacity to make a specific decision at a particular time

Echoing the views of the House of Lords Post Legislative Committee on MCA, the guidance says the:

“committee agreed that effective training and support on the Mental Capacity Act 2005 and how to apply its principles in practice is essential for practitioners working with people who may lack capacity to make a decision.

[…]Some of the evidence suggested that practitioners did not always understand the requirements of the Act and that their practice did not always comply with these. A better understanding of what training and support increases compliance with the Act could improve outcomes for people who may lack capacity to make a decision.”

NICE is asking organisations to review their current practice and to ensure their recommendations are put into effect. Click here to view key pointers from NICE to help your organisation put NICE guideline into practice.

Some issues which might need specific attention when implementing the recommendations included: “Ensuring a workforce that is well-trained and well-developed in supporting decision-making and in implementing the Act. Practitioners need to understand the status of the person's decision-making capacity at that specific point in time and how their particular impairment of the mind or brain affects their current ability to make decisions".

Sue Inker, Bond Solon Subject Matter Expert in Mental Capacity Act, says:

The Mental Capacity Act is now just over 10 years old and those responsible for delivering the NICE guideline had a difficult task as they could not re-write the statutory Code of Practice.

Although not explicitly, the guideline points towards the importance of support of the exercise of legal capacity in terms of Human Rights and Article 12 of the Convention on the Rights of Persons with Disabilities (CRPD) around the promotion of autonomy and self-determination which is refreshing to see and includes helpful recommendations about advance care planning and particularly the importance of how to deliver best interests decision-making.

The guidance also points to the importance of of ensuring that the key section or the “core determinative provision” of the Act at s 2(1) which is fleshed out by applying the rest of s 2 and the whole of s3, and which is traditionally called the two limbs of the capacity “test” is delivered.  

It focuses on the importance of accepting that the test actually contains three elements and that all three elements must be met before a person can be deemed to lack capacity.

The three elements are

(1) is the person unable to make a decision? If so;
(2) is there an impairment or disturbance in the functioning of the person’s mind or brain? If so;
(3) is the person’s inability to make the decision because of the identified impairment or disturbance?

The causal link between (1) and (2) is a stringent test.

It reminds us of the importance of assessing capacity not only in line with the statute but in accordance with relevant case law which interprets the law, in this case PC and NC v City of York Council (2013) EWCA Civ 478.

Delivering the act on the ground is still very difficult and the writers of the Guidance grapple with this, touching on issues around interpretation, how to ask questions to different client groups, “executive dysfunction”, but is silent on the thorny issue of fluctuating capacity.  
The Guidelines are helpful, but we urgently need an updated Code of Practice and maybe some multi-disciplinary practice guidance which should include how to constitute a rigorous capacity assessment.”

As always, Bond Solon will be pleased to assist in this process in any way we can. Please call us for more information on our Mental Capacity Act Training and how we can support your workforce.

This article was first published on 14th November 2018.

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