14. The Mental Capacity Act 2005 ― implications for health care, impact on nursing
Matter for discussion submitted by the RCN South West Durham Branch
That this meeting of RCN Congress discusses the implications of the new regulations relating to the Mental Capacity Act and the powers of Lasting Power of attorney on nurses
Report on this discussion
The Mental Capacity Act - implications for health care, impact on nursing
The Mental Capacity Act (2005) came in to force in October 2007. The Act deals with liability for actions in connection with the care of a person who lacks capacity to consent to what is done. It establishes a new statutory scheme for 'lasting' powers of attorney and also enshrines - through an Advanced Directive - the ability for individuals to make provision in law for their future care and treatment options.
Discussion included concerns over whether nursing decisions can be vetoed by those with lasting power of attorney and how this can be reconciled. Nurses need to work with patients and the person with power of attorney.
Bonnie Mitchell said that the Mental Capacity Act is good for all people - as it grants the right to make health care choices - nurses have to ensure these are informed choices.
Lisa Lester spoke of the need for all nurses to be informed about the Act as it affects all of them. Soline Jerram said that the Act ensures open discussion on end of life care with patients, and that it empowers people to talk to nursing staff about what they want.
Katrina Denton closed the debate saying that many nurses are not aware of the Mental Capacity Act and that it is vital that they are informed.
Background
The Mental Capacity Act (Parliament, 2005) came into force in 2007, and has been described as one of the most pivotal pieces of health care legislation enacted in living memory. The Act codifies the decision-making process in regard to the management of those who, because of a lack of mental capacity, are unable to make decisions for themselves. It requires a principled approach to best interest decision-making, and the assessment of an individual’s capacity to determine their best interests. The Act deals with liability for actions in connection with the care or treatment of a person who lacks capacity to consent to what is done, and establishes a new statutory scheme for ‘lasting’ powers of attorney which may extend to personal welfare (including health care). The Act also enshrines ― through an Advanced Directive ― the ability for individuals to make provision in law for their future care and treatment options. This may contain directions for the deliberate non-intervention of life saving interventions.
The anticipated legislation on Deprivation of Liberty Safeguards, due for implementation in 2009 and to which the RCN has provided a consultation response, will require assessment of persons in care settings who may be considered for deprivation of their liberty (outside the restraints of existing mental health legislation).
Members in Scotland address this issue through the existing Adults with Incapacity (Scotland) Act (Scottish Parliament, 2000). The Mental Capacity Act does not apply in Northern Ireland, but the recent Bamford Review of Mental Health and Learning Disability (2007) calls for its implementation, and specifically for the Lasting Powers of Attorney to be introduced in Northern Ireland. At the time of going to press, the timetable for this is unclear, but RCN Northern Ireland is continuing to support full implementation of the Bamford recommendations.
This legislation has far reaching consequences for members. In areas where patients consent not only to procedures but ongoing care-related decisions, there will need to be a careful consideration of the individual’s capacity to consent. Members need to be able to assess, articulate and record their ‘best interest decisions’, effectively liaising and engaging in the decision-making processes with individuals who have Lasting Powers of Attorney, as well as Independent Mental Capacity Advocates. Members will also need to take account of Advanced Directives in their decisions, and in some cases obey pre-determined decisions.
With regards to health and safety issues, it may be possible that a Lasting Power of Attorney for personal welfare can overrule decisions made by nurses, such as on how a patient could be moved and handled. The only safeguard currently available is to make a complaint to the Office of the Public Guardian after the event, by which time a nurse may have irreparable back pain.
RCN Direct advisers have received training on matters arising from the Mental Capacity Act, and their resources have been designed in order to signpost members to up to date information. In addition a working group of RCN staff has met to plan initiatives to support members.
References and further reading
Bamford Review of Mental Health and Learning Disability (2007) A comprehensive legislative framework: consultation report, Belfast: Bamford Review. Available from: www.rmhldni.gov.uk
Parliament (2005) Mental Capacity Act, London: Stationery Office. Available from: www.opsi.gov.uk
Scottish Parliament (2000) Adults with Incapacity (Scotland) Act, Edinburgh: Stationery Office. Available from: www.opsi.gov.uk
Evans S, Denton K, Hancock C (2008) Failure to train staff on the Mental Capacity Act puts trusts as risk, Health Care Risk Report, 14 (2), pp. 16-17.