The Mental Capacity Act 2005; a shrt guide fr the carers and relatives f thse wh may need supprt Ian Burgess MCA Lead 13 February 2017
Agenda Overview f the MCA The 5 Principles and the legal definitin f mental capacity Hw and when is mental capacity assessed, and by whm? Best interests decisins What the Act demands f prfessinals Reslving disagreements abut mental capacity and decisins Lasting Pwers f Attrney, Curt Appinted Deputies and the Curt f Prtectin
The 5 Principles f the MCA 1. A persn must be assumed t have capacity unless it is established that he lacks capacity. 2. A persn is nt t be treated as unable t make a decisin unless all practicable steps t help him t d s have been taken withut success 3. A persn is nt t be treated as unable t make a decisin merely because he makes an unwise decisin. 4. An act dne, r decisin made, under this Act fr r n behalf f a persn wh lacks capacity must be dne, r made, in his best interests 5. Befre the act is dne, r the decisin is made, regard must be had t whether the purpse fr which it is needed can be as effectively achieved in a way that is less restrictive f the persn's rights and freedm f actin See Page 19 f the Cde f Practice
The 2 stage test 1. Is there an impairment f r disturbance in the functining f the mind r brain? Yes r N? If N, the persn is the decisin maker. If Yes; 2. Is that impairment sufficient that it affects the persn s ability t make the specific decisin at the time it needs t be made? UNDERSTAND THE INFORMATION RETAIN LONG ENOUGH TO WEIGH UP OR USE THE INFORMATION AND COMMUNICATE THEIR DECISION.
Enabling the persn t decide If, despite all effrts, the persn can t d any ne f these 4 things because f the mental impairment, then n a balance f prbabilities she r he will nt have the mental capacity t make the specific decisin at the time it needs t be made. Des the persn understand the decisin they have t make? The persn needs nly t understand the pertinent details and these must be cmmunicated in a way which will enable the persn t understand. Ask the persn t explain in their wn wrds what their understanding f the decisin is. Is the persn able t retain the infrmatin lng enugh? Use prmpts, write things dwn if need be. It is nt really a test, mre a cnversatin. If the persn cannt recall the relevant details lng enugh, repeat them, try t find a way f enabling him r her t remember them. Is the persn able t use r weigh the infrmatin t make the decisin? Can the persn assess the cnsequences f the decisin r f nt making the decisin? Can they see all parts f the argument and relate ne t the ther? Can the persn cmmunicate their decisin?
Mre abut assessing capacity Where and when shuld the assessment happen and wh shuld be present? Is there a rle fr family members / friends / carers at the assessment? Risk assessing with the persn What is fluctuating capacity? What if the persn says ne thing t the assessr but yu knw that he r she will d smething else?
Mre abut assessing capacity Is an assessment needed fr every decisin every time? Wh shuld assess mental capacity and when? Can the prfessinal ask anther persn t assess capacity r t help with it? Decisin specific and time specific; t say a persn lacks capacity has n meaning in law What if the persn is under cercin r duress? What if the persn refuses the assessment?
39 Essex Chambers tp tips fr prfessinals 1. Be clear abut the decisin t be made 2. Ensure yu and the persn have all the details abut the chices available 3. Identify the salient pints the persn needs t make the decisin 4. Avid wanting t prtect the persn 5. Evidence hw yu enabled the persn t make the decisin 6. What is the impairment, why was the persn unable t understand / retain / use r weigh / cmmunicate? 7. Why is it an incapacitated rather than an unwise decisin?
Making a decisin in a persn s best interests Making a decisin in a persn s best interests is nly dne if the persn can t make it because f a mental impairment and the assessr has dne all he r she can t enable them t d s Cncluding that a persn lacks the mental capacity t make a decisin des nt autmatically give prfessinals any right t make risk averse decisins The decisin maker must have cnsidered the persn s wishes and feeling, fr example, by cnsidering what wuld they nrmally decide t d in that situatin? Has the persn made any written statements? Have they spken t anyne else abut what they wuld want? Is the prpsed decisin prprtinate t the degree f harm that might therwise be caused?
Mre abut best interests decisins What have thse wh knw the persn best gt t say? Prfessinals must cnsult with peple knwn by r identified by the persn, r with an interest in the welfare f the persn, abut what the persn wuld want. Prfessinals shuld cnsider what wuld happen if they didn t make the decisin? Des it have t be made at all? Can it be delayed until the persn might be able t make the decisin? Recrding hw is the decisin in the persn s best interests and the least restrictive in terms f rights and freedms The persn must be invlved as much as pssible. They may nt be able t make a big decisin but might still advise n smaller issues which are part f the decisin. N meeting abut me withut me
What des the 2005 Act demand f us? Paid health and scial care staff and attrneys under Lasting Pwer f Attrney and Curt Appinted Deputies etc must have regard fr the what is in the MCA Cde f Practice Hwever, the Act applies mre generally t everyne wh lks after, r cares fr, smene wh lacks capacity t make particular decisins fr themselves. This includes family carers r ther carers. Althugh these carers are nt legally required t have regard t the Cde f Practice, the guidance given in the Cde will help them t understand the Act and apply it. They shuld fllw the guidance in the Cde as far as they are aware f it. (MCA Cde f Practice) This can create misunderstanding between prfessinals and family members (ften with regards next f kin ) Sectin 5 f the Act; prtectin frm liability Hw can disagreements be reslved? Hw can disagreements be avided? A wrd abut Sectin 44 f the Act
The Gail Platt effect Anyne wh has sat in the family jurisdictin fr as lng as I have, spends the greater part f their life dealing with the cnsequences f unwise decisins made in persnal relatinships. The intentin f the Act is nt t dress an incapacitus persn in frensic cttn wl but t allw them as far as pssible t make the same mistakes that all ther human beings are at liberty t make and nt infrequently d. Justice Hedley, An NHS Trust v P [2013]
A few ther things Lasting Pwers f Attrney (can nly be created by persn ver 18) Curt Appinted Deputies The Curt f Prtectin Independent Mental Capacity Advcates Further infrmatin / resurces / cntact ian.burgess@calderdale.gv.uk