Tag Archives: Mental Capacity

Lasting Powers of Attorney – practical issues – Health and Welfare

1 Mar

Lasting Powers of Attorney – some practical issues

 

There are two types of Lasting Power of Attorney, one dealing with financial affairs and the other dealing with health and welfare decisions.  In this blog, I’m going to give some practical examples of how the health and welfare one works.

 

One of the key features of the LPA for health and welfare is that it cannot be used unless the person has lost capacity to make their own decisions.  And as capacity is time and decision specific, for each issue that arises, the carer will need to check on whether that person has capacity to make a decision.  This does not necessarily need a formal assessment of capacity, no-one wants that each time a cup of tea is given!  However it might mean asking the question about how much milk and/or sugar goes into the tea and assessing the answer.

 

Each day, we make thousands of health and welfare decisions, how much butter is on our toast and how big a gulp of tea we take in the morning, each one of those is a separate decision.  And for most of those decisions, we might not be that bothered if the carer makes that decision.  But we all have our personal preference on for example how hot our tea is, how much milk and sugar there is, so if the care communicates that, it is helpful to those providing care.  And as long as someone is dressed it might not matter if their t-shirt is red or blue.

 

So if the carer is going to make lots of these decision, why create the LPA?  Because it resolves the big issues and the issues where there is a dispute!

 

Lots of people say that they want to stay at home for as long as possible, but according to the House of Lords post legislative scrutiny of the Mental Capacity Act, Social Services are risk averse and healthcare professionals are paternalistic.  And in either case, they are not necessarily empowering the individual to make their own decision, including the “unwise choice”, which is a principle of the Act!

 

So having an LPA in place will mean that the attorney can insist that the person is cared for in their own home or discharged from hospital.  It will mean that the care that is provided to them is done in accordance to the attorney’s instructions, as long as it’s possible to provide that care.  This is not an entitlement to something that is not clinically appropriate.

 

If you have any questions about LPAs, please contact me.

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Sectioning – Mental Health Act 1983

7 Dec

 

Sectioning – Mental Health Act 1983

 

This legislation is about the safety of the person involved and their immediate surroundings, including the people in those surroundings.

 

People can be sectioned under s.2 of the MHA if they are suffering from a mental disorder and are at serious risk to themselves or others and that the situation warrants detention in a hospital for assessment and possibly treatment.  This means that two medical professionals will have considered the situation and thought that keeping this person in a specialist mental health unit will be the best thing for them in the circumstances.

 

The “mental disorder”, could just be temporary, I have previously had a client who was going through a stressful divorce and at that time was having difficulty getting contact with their child, the pressure of which became too much and they attempted to take their own life.  They were detained for a few weeks and as time passed and once the divorce was resolved and family relations settled, they became much happier and were unlikely to take that actions again.

 

The mental disorder can also be cyclical, I have had a different client who is schizophrenic, they heard voices in their head.  At times they can live with support in the community, even though they feel compelled to follow what the voices have said, they are not necessarily causing serious harm to themselves or others.  That status is not always sustainable and from time to time, something will trigger an episode where the stability of the preceding months is broken and they are at risk, often to themselves, but can also be to others.

 

The elderly with dementia can be detained if their behaviour becomes aggressive towards others or damaging to themselves, such are refusing to eat.  Aggressive outbursts tends to be more common than issues to do with self-harming, however in the process of being aggressive towards others, these usually very frail elderly people can get hurt themselves.

 

The period that they can be detained for under s.2 is not more than 28 days, so if the healthcare professionals looking after them still think that they need to stay in the specialist mental health unit, then they can either informally detain them, if they think that they would be willing to stay, or section them under s.3.  The requirements for this are similar to s.2, in that the person needs to be suffering from a mental disorder, but that they need more than assessment, that they need treatment and that it is necessary for their protection or the protection of others that they receive treatment.  Again, this must be supported by two medical practitioners.  It is also relevant that this measure in proportionate, that other forms of treatment have been considered not to be appropriate.

 

Health care professionals consider carefully whether they will section someone under s.3, as there is funding for care afterwards, which can become very expensive!  The aftercare funding that follows will be in place as long as the person requires “aftercare”.  So if the condition that they suffer from is completely resolved, then the funding might cease.  Often for people with dementia, as the dementia is both deteriorating and non-curable, the funding remains in place for life.

 

When people are detained under either s.2 or s.3, the healthcare professionals caring for them might consider that an acute hospital is not the best place for them to remain and can discharge them from the hospital to be admitted into a specialist care home, as this might be a calmer and or more homely environment.  This can be done under s.17 of the MHA, whilst they still remain sectioned under either s.2 or s.3 and would continue to be supervised by clinicians.

 

If you have need any help or support dealing with a loved one, who has been sectioned, please contact me.

Mental Capacity – what does it really mean?

31 Aug

 

Mental capacity – what does it really mean?

 

When someone has lost their mental capacity, what does that mean?  With the Mental Capacity Act 2005, capacity is considered to be time and decision specific, but what does that mean?  Every decision that is made is made at a certain time, it might even be made each day at the same time, such as eating breakfast or getting out of bed, but each decision is made every day and tomorrow the decision to have breakfast is a new decision.  Capacity can be fluctuating, so if someone is very unwell today, they might not be tomorrow and their capacity can return.  This is why decisions are time specific.

 

What about decision specific?  Some decisions are much more complicated than others, such as the decision to move house, but a decision about what to eat for dinner is much easier, so someone with poor cognition may not be able to make one decision, but might be able to make another.

 

The statutory test of capacity at stage 2 of the decision making process is about understanding it, weighing it up, retaining it and communicating the decision.  So how does someone weigh up the decision?  The easy answer to that, is to ask them.

 

What isn’t part of assessing someone’s capacity is the “nice answer” or the “risk free answer”.  So whether someone with a cognitive impairment can decide to live with a relative or not, should not depend on whether the arrangement would work well or would be good for one of more of the parties.  Or just nice to see happen!  Ask them if they understand the proposition, look at the different aspects of it, how would an “average person” analyse the situation, unless you know they have skills in the area greater than an average person, then that’s the criteria to assess them by.

 

When deciding if someone has capacity to eat dinner, an average person would be unlikely to know how many grams of saturated fat they have eaten today, or how many calories.  An average person knows they are hungry and what they might fancy eating and that it’s approximately dinner time.  There is no reason to make the decision more complicated than it needs to be.

 

One of the key aspects of the Mental Capacity Act is the presumption of capacity, that someone is considered to be able to make a decision until it is proven that they can’t.  Capacity is often a balancing act and it is only when someone is in a coma or other minimally aware state that there is a total lack of capacity, even people so impaired that they are non verbal can refuse to eat or drink or have care undertaken.  And they might refuse to eat their meal, but agree to eat their pudding or sweets, because they know the difference and have a preference.

 

The ideas behind the Mental Capacity Act were about enabling and empowering people to make as many decisions that they can for themselves.