The Mental Capacity Act in Prison Settings

The Mental Capacity Act 2005 (MCA) provides a framework for making health and social care decisions for people who lack capacity to make a decision about their own care. It applies to everyone aged 16 and over in England and Wales and therefore applies as much to those in prison as those on the outside.

The MCA is wide ranging and applies to all sorts of decisions, from serious decisions about complex medical treatment, where somebody should live and who they should have contact with, to day to day decisions such as whether someone should have a shave and what they should eat.  The MCA can come into sharp focus when dealing with challenging issues in a prison setting, such as self-harm.  My colleagues’ article discusses this in more detail.

5 Principles of the Mental Capacity Act 

The MCA has five guiding principles that ensure that a person-centred approach is taken to enable the individual to be as involved in the decision-making processes as far as they are able. The 5 guiding principles are: 

1. A person must be assumed to have capacity unless it is established that he lacks capacity;
2. A person is not to be treated as unable to make a decision unless all practicable steps to help him do so have been taken without success;
3. A person is not to be treated as unable to make a decision merely because he makes an unwise decision;
4. An act done, or decision made, under this Act for on or on behalf of a person who lacks capacity must be done, or made, in his best interests;
5. Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.

Mental Capacity Assessment

Whilst there is a presumption of capacity, if there is doubt that a patient has capacity to make a particular decision, an assessment should be carried out in relation to that decision. An assessment can be carried out by a medical practitioner or social care professional. Where the capacity assessment is being made in relation to a complex or major decision, or the patient’s presentation itself is complex, it may assist to have a GP or mental health professional support the assessment.

A capacity assessment is decision specific and time specific which means that the practitioner must assess the patient’s ability to make a particular decision at a particular time.  A person can only be considered to lack capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or disturbance in the functioning of, the mind or brain. It does not matter whether the impairment or disturbance is permanent, temporary or partial.

A lack of capacity cannot be established merely by reference to age, appearance, condition or behaviour which might lead others to make unjustified assumptions about the person’s capacity. When assessing whether a patient has capacity the practitioner must consider if they are able to:

• Understand the information relevant to the decision;
• Retain that information;
• Use or weigh that information as part of the decision-making process;
• Communicate the decision (whether by talking, using sign language or any other means).

If any of the above are answered no, and this is due to an impairment or disturbance in the functioning of the patient’s mind or brain, then the patient lacks capacity to make the decision in question.

Mental Capacity and Best Interests

Once it is established that a patient lacks capacity to make a decision, any decision made on their behalf should be made in their best interests. This involves a number of considerations. For example, is it likely that the patient will regain capacity in the future? If so, when and would it be reasonable to wait until then for the decision to be made to enable them to participate? 

A best interests assessment should consider the patient’s past and present wishes and feelings, and any beliefs and values that would influence them if they had capacity. The assessor must also take into account the views of anyone named who should be consulted, anyone engaged in caring for or interested in the welfare of the patient and any court appointed deputy.  The duty to consult applies unless it is impracticable or inappropriate to do so.  This may pose a particular challenge for those caring for patients in a prison setting.  Nevertheless, the duty to consult with, for example, relevant family members or a spouse, is still an important part of a best interests assessment.

Advance decisions

An advance decision can be made by anyone aged 18 or over, who has the capacity to make the decision that at a later time and in specific circumstances, if he lacks capacity to consent to treatment, then a specified treatment is not to be carried out. This does not need to be in writing unless it applies to life-sustaining treatment.  Advance decisions are legally binding.

Lasting powers of attorney

Some individuals may have Lasting Power of Attorney (LPA) in place. This allows a donor to give the attorney the power to make decisions for them about certain matters in the future if they lose capacity. A donor can appoint an attorney to make decisions regarding property and finances and/or health and welfare.  Similar considerations apply to court appointed deputies.

Our legal experts specialise in advising clients on safeguarding their future, and can help you put in place the best strategy to ensure your or a relative’s affairs are properly dealt with if there comes a time when you or they are no longer capable of managing.

Restraint

Restraint is defined as the use (or threat to use) force to secure the doing of an act which the patient resists, or restricting a patient’s liberty of movement, whether or not they resist. Therefore the definition of restraint in the MCA is fairly wide.  There is a power to use restraint under the MCA provided:

• the patient lacks capacity, 
• it is in their best interests to do so, 
• there is a reasonable belief that it is necessary to prevent the patient from coming to harm; and 
• any restraint is a proportionate response to the likelihood of the patient suffering harm and the seriousness of that harm.

Case Study

An example of how these principles might apply in practice can be demonstrated using a fictional character; Barry. Barry is a 74-year-old man serving a sentence for drugs offences. Barry has a diagnosis of early dementia and suffers from Type-1 diabetes, but he is not compliant with his insulin regime and blood glucose monitoring. The staff caring for Barry want to know whether he can be treated. 

A capacity assessment should be conducted to determine whether Barry has capacity to make decisions regarding his treatment for diabetes.  The assessor would need to consider:

• Does Barry understand the information provided to him regarding the need to comply with his insulin regime to manage his diabetes along with the risks associated with non-compliance?
• Can Barry retain the information provided to him long enough to make a decision about his treatment?
• Can Barry weight up the information about what the treatment involves and the risks and potential health consequences associated with non-compliance in order to come to a decision?
• Can Barry communicate his decision verbally, through writing or any other means such as blinking or squeezing a hand? 

If any of the above are no, then it must be established whether the inability to make the decision is caused by an impairment of, or disturbance in the functioning of, the mind or brain. In this case, Barry has dementia which meets the criteria.  If his dementia causes Barry to be unable to carry out one or more of the above, then a decision regarding treatment should be made in Barry’s best interests.

The long term conditions nurse carries out an assessment of Barry’s capacity in relation to his diabetes and determines that due to his dementia, he lacks capacity to make decisions about his treatment for diabetes.

Barry has a daughter who is consulted during the best interests process.   She advises that she has a LPA for Barry. 

Before allowing his daughter to make any decisions on Barry’s behalf, the practitioner responsible for Barry’s care should request to see the LPA and check that this covers health and welfare decisions. The paperwork will also confirm whether the LPA is registered and if there are any restrictions to this (for example limits to the subject matter the attorney can make decisions about, or a number of attorneys who have to act jointly).

The LPA is checked and confirmed as valid and applicable. During a best interest meeting various treatment options were discussed including allowing Barry to monitor his own blood sugars, requiring a practitioner to attend daily to monitor his blood sugars and administer his insulin and the use of a Continuous Glucose Monitor (CGM) or Flash monitor. Barry’s daughter makes the best interests decision that Barry should be treated for his diabetes in line with a care plan agreed with the practitioners. A CGM is agreed as in Barry’s best interests as, due to his dementia, Barry is not always able to alert practitioners to any symptoms that may indicate hyperglycaemia or hypoglycaemia and this device would reduce the number of daily interventions Barry requires.

Barry’s daughter has also agreed that, whilst Barry is on the waiting list for the CGM proportionate restraint can be used to administer insulin or take bloods, eg, Barry’s arm may be held during these interventions.

Our Legal Expertise

Hill Dickinson LLP are the national leading experts on the Mental Capacity Act 2005 (MCA) and deprivation of liberty (DoLS), with more lawyers independently ranked in directories as leading practitioners in this field than any other firm.

Our lawyers have been involved in the leading case law, including at Court of Appeal and in the Supreme Court, as well as being involved in the development of national policy, guidance and training.  

Contact our legal experts with any queries today.