Making Sense of Mental Capacity The right to decide... And deciding right
The Mental Capacity Act 2005
Who must follow the Act and Code of Practice? Everyone working or for those who may lack capacity People working in a professional capacity, e.g. doctors, nurses, dentists and social workers, police and prison officers, teachers People who are paid to care or support, e.g. home care workers and care assistants, support workers Anyone who is a Deputy, or Power of Attorney Anyone acting as an independent mental capacity advocate (IMCA) Anyone carrying out research involving people who may lack capacity
Should always be heading this way Decision making pyramid who decides? Autonomous decision-making Has capacity to decide/consent I make decision We make decision Supported decision-making Lacks capacity to Substitute decide/consent decision-making They make decision
What is mental capacity? Mental capacity is the ability to make a decision Relates to a particular decision at a particular time It is a judgement of a person s decision making skills It is a legal construction It is a balancing of evidence It is about the quality of decision-making, not the quality of decisions Nobody must assume a lack of capacity because of a person s: age, physical appearance, condition or an aspect of their behaviour
The five core principles (Code of Practice, Chapter 2) 1. A person must be assumed to have capacity unless it is established that they lack capacity. 2. A person is not to be treated as unable to make a decision unless all practicable (doable) steps to help them to do so have been taken without success. 3. A person is not to be treated as unable to make a decision merely because they make an unwise decision. 4. An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in their 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.
Questions that must be considered when assessing capacity Does the person have the ability to: understand the relevant information? retain information long enough to decide? use and weigh the information in the balance? communicate the decision by any means? on the balance of probabilities it is more likely than not If NO to any then they lack capacity to make the decision
Tim s Best interests (Mental Capacity Act, Section 4; Code of Practice, 5.1 5.69) Any decision or act must be in a person s best interests Best Interests IS NOT THE SAME AS Best for What would Tim take into account? What do we know about Tim that might be important? What are Tim s known views, beliefs, values? Who else might know something important about Tim? Have we explored all options? Have we got the balance right? What decision would Tim make if he were able?
MCA other safeguards The MCA (2005) is a major piece of new legislation. Other safeguards in the Act include: Lasting Power of Attorney Court Appointed Deputies Advanced Decisions to refuse treatment Court of Protection Independent Mental Capacity Advocate Office of Public Guardian Criminal Offence
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Top Tips Don t assume they know best Don t assume you know best Share your knowledge of the person What is important to them, as well as what is important for them Plan a little and often Cotton wool or safety belt?