Advance Decision to Refuse Treatment
Often shortened to ADRT, this is a way for anyone aged 18 or over, who has mental capacity, to refuse medical treatment (including clinically assisted nutrition and hydration) that may be offered at a time the person lacks capacity to consent to it. It is a powerful tool because it has the effect of preventing any doctor or nurse from giving that treatment. Because of this, there are specific legal rules around this. See MCA Code of Practice, Chapter 9.
When someone lacks capacity, any decision or action taken for, or about them must be in their ‘best interests.’ This is a holistic concept. For example, wherever possible, decision-makers must try to identify what this person would have done in this situation if they had capacity. If this is impossible, they must still take account of the person’s wishes and feelings, their culture and background, and try to align their decisions with these. See MCA Code of Practice, Chapter 5.
Children and Young People
The MCA does not apply to children, here meaning those aged 15 or under, except in rare cases when it is extremely likely a child will need a deputy once they reach 16 and one is appointed for continuity.
The MCA does apply to young people from the age of 16, but someone cannot create LPAs or make an Advance Decision to Refuse Treatment (ADRT), or have their rights protected if they are at risk of being deprived of their liberty by a very restrictive care plan, until they are 18. The MCA starts from the assumption that a young person has capacity to make their own decisions, for example to consent to or refuse treatment, from the age of 16 unless they lack capacity. However, the legal frameworks governing children, such as the Children Act 1989, tend to apply up to the age of 18. This can lead to confusion or conflict. See MCA Code of Practice, Chapter 12 and, if in doubt, take legal advice.
Deprivation of liberty
Someone aged 16 and over, who lacks capacity to consent to arrangements to give them necessary care or treatment, is deprived of their liberty if they are
- Under complete and effective supervision and control (not necessarily ‘line of sight’ observation, but at any time staff know where the person is and roughly what they are doing; and
- Not free to leave (they may be allowed out, accompanied on even alone if deemed safe, but cannot leave their care setting permanently to go and live elsewhere, unless this is agreed by staff or professionals).
This is called the ‘acid test’. The Supreme Court case, defining the acid test, is usually known as ‘Cheshire West.’
Deprivation of Liberty Safeguards (DoLS)
The deprivation of liberty safeguards (DoLS) is a system set up to allow local authorities to authorise the deprivation of liberty for people aged 18 and over, in care homes or hospitals, when their care plan meets the ‘acid test’ and no less restrictive way can be found to meet their needs.
If a person lacking capacity aged 16 or 17, or of any age but living in a community setting rather than a hospital or care home, is also subject to a care plan that meets the acid test, this can only be authorised by the Court of Protection. The application is made by the commissioners of the care or by the local authority.
The Care Quality Commission (CQC) monitors the use of the DoLS and also of community deprivation of liberty applications to the Court of Protection. Providers must report the outcomes of applications for authorisation by either route: see CQC Provider Portal and relevant CQC guidance.
A deputy can be appointed by the Court of Protection to make decisions that need making when a person has lost mental capacity to make these decisions for themselves and has not appointed anyone to do this using lasting powers of attorney (LPA). Deputyships are of two kinds,
- Health and Welfare
- Property and Financial Affairs.
A relative or friend can apply to be appointed as a deputy, though for Property and Financial Affairs the Court might appoint a solicitor or accountant. Deputies are overseen by the Office of the Public Guardian. For full information on Deputies see Office of the Public Guardian Deputy.
DoLS: see Deprivation of Liberty Safeguards
Lasting Powers of Attorney (LPAs)
LPAs can be of two distinct kinds, covering different kinds of decisions: these are
- Health and Welfare, and
- Property and Financial Affairs.
They allow anyone aged 18 or over, with capacity to understand the implications of doing this, to give powers to someone they trust to make decisions on their behalf, in their best interests. A person can make either of the above kinds of LPA, or both. The process, and actions by LPA attorneys, are overseen by the Office of the Public Guardian. For full information on LPAs see Office of the Public Guardian LPA. Also see here for how to report Adult Safeguarding issues concerning an LPA attorney.
Mental Capacity: definition and assessment
The Act defines mental capacity as a decision and time specific ability. This means, can the person make a specific decision, or series of linked decisions, at the time they need to do this.
The MCA lays out a two-stage test of capacity.
The first stage is to check, about a specific decision or linked series of decisions, that, with every possible help if necessary, the person can carry out these four steps:
Understand information relating to the decision(s)
Retain that information in their memory, for long enough to
Use or weigh it to reach a decision, and
Communicate that decision by any method that can be understood.
If the person cannot carry out all four of these steps, proceed to the second stage.
This asks you to consider whether their inability to carry out at least one of these steps is because of any disorder or disability of the mind or brain. This stage links their inability to something wrong in their brain or their mind. Note how wide this is; it covers temporary conditions, such as delirium or drunkenness, as well as conditions that might not yet have been identified and given a diagnosis.
For more on the assessment of capacity, see Code of Practice, Chapter 4.
Mental Capacity Act 2005 (MCA)
The Mental Capacity Act is the law that lays out the importance of protecting the human rights of anyone from 16 upwards who might lack mental capacity to make any decision at the time it needs to be made. It also gives protection from liability to anyone acting with, or on behalf of, a person who lacks capacity, provided they can show they have reached a decision or acted in a certain way in the best interests of the person. The MCA is supported by a statutory Code of Practice.
Mental Capacity Act Code of Practice
Anyone paid to work with someone lacking mental capacity must ‘have regard to’ the MCA Code of Practice and, where it applies, the supplementary code to the deprivation of liberty safeguards. This effectively means that their guidance must be followed unless you can identify a good reason why not. The current Code of Practice is overdue to be replaced, and is out of date in some respects, for example, the two-stage test of capacity is to be carried out as outlined in this tool, rather than in the order laid down in the code.
A revised Code of Practice is in production, and this tool will be updated when the revised code is published. Until then, use the extensive basic guidance in the code referred to throughout this tool.
Principles of the MCA
The five principles of the Act are statutory: this means that anyone paid to work with or on behalf of someone lacking mental capacity must make their decisions, and take necessary actions, in accordance with these principles. Note that when the principles, or indeed the MCA itself, refers to someone lacking capacity, they always mean capacity to make a specific decision at the time it needs to be made. The principles are:
- A person must be presumed to have capacity unless it is established that, on the balance of probability, they lack capacity
- A person is not to be treated as unable to make a decision, unless all practicable steps to enable them to do so have been taken without success
- A person is not to be treated as unable to make a decision merely because they make an unwise decision
- Before the act is done, or the decision is made, you must consider whether the purpose for which is is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.
For how to use the principles in practice, see MCA Code of Practice, Chapter 2.