Mental Capacity & Consent Policy

1. Purpose

Every day we support people with decisions: whether to get up, what to eat, whether to take a medicine, who comes into their home. This policy sets out how we ensure those decisions are made by the person wherever they can be, and in their best interests only where they cannot.

It applies to all care staff, managers, volunteers and students, and covers every decision made in the delivery of personal care.

2. The five statutory principles

1. A person must be assumed to have capacity unless it is established that they lack it. A diagnosis of dementia, a learning disability or a mental health condition is never, by itself, evidence of lacking capacity.
2. A person must be supported to make their own decision before it is concluded that they cannot. This means time, information in the right format, an interpreter, an advocate, or a familiar face.
3. A person is not to be treated as lacking capacity merely because they make an unwise decision. People are entitled to make choices we would not make for them.
4. Any act done for a person who lacks capacity must be done in their best interests.
5. Before the act is done, consider whether a less restrictive option would achieve the same outcome.

3. The two-stage capacity test

For the specific decision in question:

Stage 1 — Is there an impairment of, or disturbance in the functioning of, the mind or brain? This may be temporary, for example due to infection, delirium, pain, shock or the effects of medication.

Stage 2 — If so, can the person:

• understand the relevant information?
• retain that information long enough to use it?
• use or weigh the information as part of the decision?
• communicate their decision by any means?

If the answer to any of these is no, the person lacks capacity for that decision at that time. The assessment and its reasoning are recorded, along with the date, time and the method used to support the person.

4. Everyday consent

Consent must be informed, voluntary and given by someone with capacity. Staff seek consent at the point of care, not once on a form.

• Explain what you are about to do, in plain language, before you do it.
• Offer choice in how and when care is given.
• Accept refusal. A refusal of a particular task is respected and recorded, and the consequences are discussed with the person, the family and, where relevant, the GP or district nurse.
• Be alert to fluctuating capacity, which is common in infection, delirium and some mental health conditions. Reassess at each visit if needed.

For personal care and medication support, the care plan records the person's expressed wishes, including advance decisions and any Lasting Power of Attorney.

5. Best interests decisions

Where a person lacks capacity, a best interests decision is made using the statutory checklist:

• the person's past and present wishes, feelings, beliefs and values
• any advance statement or advance decision to refuse treatment
• the views of anyone named by the person, carers, family and attorneys
• whether capacity might return (for example after an infection is treated)
• the least restrictive option that meets the need
• the person's age, appearance, condition and behaviour only where genuinely relevant

The decision, who was consulted, the options considered and the reasons are recorded in the care record. Decisions are reviewed as circumstances change.

Staff make everyday best interests decisions within their competence. Significant decisions — for example a change of accommodation, a serious medical procedure or the use of restraint — are escalated to the Registered Manager and the relevant professional, with an Independent Mental Capacity Advocate appointed where the law requires one.

6. Deprivation of liberty

A person is deprived of their liberty where they are under continuous supervision and control and are not free to leave. In a person's own home, this can arise through locked doors, constant observation or the removal of a walking aid.

• Any restriction must be the least restrictive option, proportionate, and recorded with its rationale, review date and the name of the decision maker.
• Where a deprivation of liberty may be occurring in a care home or hospital, an authorisation under the Deprivation of Liberty Safeguards must be sought from the supervisory body.
• For people living in their own home, the position remains governed by the Mental Capacity Act and case law while the Liberty Protection Safeguards are implemented; we seek legal and local authority advice in every case and record it.
• Every use of restraint is recorded as an incident, and our Adult Safeguarding Policy applies where restraint is used improperly.

7. Covert medicines

Medicines are never given covertly without a documented best interests decision involving the GP, pharmacy and family, and a recorded plan reviewed at least annually. Our Medication Management Policy applies.

8. Roles and training

The Registered Manager is the MCA Lead, is responsible for the quality of capacity assessments and best interests records, and acts as the point of contact for the local authority MCA team. All staff complete MCA and DoLS training at induction and annually, with refresher case discussions in supervision.

9. Monitoring

A sample of capacity assessments and best interests records is audited quarterly. Restrictive practice is reviewed monthly by the management team and reported to the Board, along with any applications for authorisation and their outcomes.