Understanding the Mental Capacity Act

Jeanette Forsyth. Challenging-Behaviour CPD. October 2015.
Copyrighted please do not use in part or whole without permission of the writer.

Mental Capacity Act.

The Act was defined in 2005. Started to be used in 2007. It with the code of practice is 300 pages long. It is worth a read. So in brief...

Who does the Act apply to?
Anyone in England and Wales that is 18 years and over. There are clauses for Young Adults 16-18y and for Children, but we will not be looking at these today. There are clauses for people who are detained under the Mental Health Act, these will not be looked at today

What is Mental Capacity?
Being able to make your own decisions.
The Mental Capacity Act 2005 will help people to make their own Decisions.

What is lacking Capacity?
Inability to make a decision or is unable to make a decision because of disturbance, functioning, impairment of the mind or brain. Has had a trauma of injury to the brain workings.

It does not have to be permanent, it maybe at that moment in time i.e. Medical condition like a stroke, temporary i.e. Injury to head, changes over time i.e. Dementia.

Who does it protect?
People who can not  make their own decisions about something. This is called lacking capacity.

What does the Act tell people?
What to do to help someone make their own decisions about something.
How to work out if someone can make their own decisions about something.
What to do if someone cannot make decisions about something sometimes.

When should Mental Capacity be assessed?
-persons behaviour
-inability to assess risk of harm
-a person being concerned about another
-previous history of impairment

Who assesses Mental Capacity?
-Health Professional
-Lawyer
-An Assessor
-Appointed person (Attorney)
-Multi disciplinary team (Counsellor maybe called to attend)

What does the Act cover?
-The ideas behind the Act.
-Code of Assessment
-Best Interests and Safegarding
-New Lasting Powers of Attorney and deputies.
-Court Protection
-Office of the Public guardian
-Criminal implementation
-An independent Mental Capacity Advocate Service
-A code of practice for people to follow

The Mental Capacity Act also covers
-acts in connection with care and treatment.
-advance decisions to refuse treatment
-research involving people who lack capacity

The 5 most important things people must do when using the Mental Capacity Act
1. Thinking each person can make their own decision. Unless decided otherwise.
2. Give the person all the support they can to help them make any decisions. Using every type of media possible to establish that support.
3. No one should be stopped from making a decision just because someone else thinks it's bad or wrong. Unwise decisions do not count.
4. Anytime someone does something or decides for someone who lacks capacity, it must be in the persons best interests -there is a check list for this.
5. When someone does something or decide something for another person, they must try as much as possible not to limit the freedom or the rights of the person.

How do we Assess Capacity?
-it's not on how old you are (over 16 years).
-it's not on how you look
-it's  not on how you act
-it's not about the condition you have

What can be taken into consideration?
-the religion or faith or beliefs
-cultural background
-political convictions
-past behaviour or habits

It can not be assumed that you can not make the decision yourself on the grounds of
- Disability
- Cognitive ability (complicated decisions)
- Past inability to make decisions

We have to make sure the person can not make that decision for themselves.

What is meant by ' best interests'?
-Listen to the wants of a person
-Talk to those who know the person
-Making no assumptions but understand the meanings for the person
-Involving the person in the process of the decision

Who can be involved in the best interests of the person?
-someone they want consulted
-involved in their care
-involved indirectly in their welfare
-attorney appointed
-deputy
-doctor

What happens to Confidentiality of the person?
It still stands and people must follow the guidelines, procedures and practises if the profession they are in.

What things are not covered under the Mental Capacity Act?
-whether a person can get married or have a civil partnership ceremony
-whether a person can have sex
-whether a person can place a child up for adoption
-whether they want to vote at an election

What is meant by inability to make a decision?
-understanding of what is being asked of them regarding the decision
-retain the information in their mind
-weigh up both sides to make a decision to be impulsive
-communicate their decision, coma, unconscious, locked in syndrome

What is in the Mental Capacity Act in connection with Care or Treatment of a person?
-If a person is in need care or treatment, they can get someone to help the person to get that care or treatment on their behalf.
-The person may need help in making decisions about that care or treatment, they may need an impartial person to help due to time limits or having capacity at that moment in time.
-The person caring or treating must follow the guidelines and checklists to decide what is in the best interests.

What other things can be put in place to help people with Mental Capacity problems:
-location
-timing
-friendly support with them
-offering scenarios

A Lasting Power of Attorney, an Advanced Decision or the Deputy would be used to take over making of these decisions if the person lacks Mental Capacity.

So what is a Lasting Power of Attorney?
It is a written document Legally drawn up where you can say in advance who you want to make decisions for you, if you are unable to make decisions for yourself. However you can only make this legal document if you understand what it means.

What is a EPA, Enduring Power of Attorney?
This is a legal document for property and money.

What is a LPA, Lasting Power of Attorney?
This is what is used under the Mental Capacity Act. The attorney must act in the best interests of the person lacking mental capacity.
-Health, i.e. Need of an operation
-Welfare, i.e. Need of housing
-Property i.e. Selling a house
-Money i.e. Looking after income or money

What is a Deputy?
This can be given under court protection. The court dictates what a person can do or can not do. They have to act on behalf of the court and act in the best interest of the person.
Occasionally there maybe a time that a one off occasion is needed; this is known as 'a single order of the court'. There is no Deputy assigned in a 'single order' the Judge may make the decision.

A pre existing LPA, Lasting Power of Attorney over rides the Deputy or the Single order.

The Deputy is overseen and monitored by the Public Guardian.

What is a Public Guardian?
They will be a person Employed by the Office of the Public Guardian which helps the courts look after the paperwork and applications for the Lasting Powers of Attorney and Deputies.
They are the people who check the job is being done properly.
They may work with Social Services or the Police or Health when they think someone may of been abused.
They have to make reports every year and submit them to the courts.
The Public Guardian board looks at how the Public Guardian does it's job.

Advanced Decision are made within Health and the Mental Capacity Act.
Sometimes people need medical intervention, a Doctor may have to ascertain if their patient has the Mental Capacity to know if they whether they want treatment of not.

'Advanced decision' is when someone who DOES have mental capacity decides they DO NOT want a particular treatment if they lack capacity in the future. A Doctor has to accept this decision.
An 'Advance Decision' must be about the treatment you want to refuse and why you want to refuse it!
It must be clearly signed by the person or be witnessed being signed by another person on behalf of the person in question.

People have to think carefully before making and signing an 'Advanced Decision'. It is a person's choice. They however must be fully aware and understand its meaning. This choice can be overturned by the person.

What is The Court of Protection?
It is a court with a Judge, people will go to or write to, to present their case, the Judge makes the decision. This service is open to everyone when you cannot say or decide what to do; when you do not have Mental Capacity.
Example:
1. Should you have an operation, when the Doctors and Family disagree for the operation. You cannot decide for yourself.
2. How your money should be spent/ handled if you can not decide yourself.
3. Anything else that has to be decided but you are unable to decide for your self.

So what happens for those who have no family or friends to help them?
There is a service called IMCA Independent Mental Capacity Advisor. An advocate is given to the person to assess what is in the persons best interest. They will be involved in all aspects of the person, they are regulated by the Government.

They will be involved when organisations like Social Care  or Health have to make decisions. This might be medical treatment r moving to a hospital of moving to a care home.

Research.
What does the Mental Capacity Act say about Research?

Research is needed and historically people lacking in Mental Capacity were used in research with no say.
The Government now have strict rules on Research studies and People doing the Research have to follow the Research Ethic Committee guidelines, made up of a panel of independent persons.
The rules have been clearly set out for those lacking in Mental Capacity to say if they do or don't want to be involved in research.
-research can only be done on the condition you have
-it's outcome must be to help those peoples condition and others like them
-the risk of harm must be minor
-the 'hassle' to you must be minor
-you must be 'happy' to take part
-research must stop if you no longer are 'happy'
-family, carers, or an independent appointed person must agree for the person to take part, saying no if they think you would have not agree personally if asked.

What else does the Mental Capacity Act Do for protecting people?
-Since 2007 it will be against the law to badly treat someone who may lack capacity that you care for or look after. It is now a criminal offence and a person can be prosecuted.
-The person is disqualified from Jury service

There is a Code of Practice that inform people how to follow the Act. Everyone with a duty of Care should be Aware of the Mental Capacity Act. You may find this on the Internet.


References
Mental Capacity Implementation Team
Disability Action
Mental Capacity Act and Code of Practice. www.guardianship.gsi.gov.uk

Note: (To down load the Act and Code is 300 pages)