TRIDENT – A SOCIAL BUSINESS THE MENTAL CAPACITY ACT A provider perspective on the implications for the Housing, Care and Support Sector Anthony McCool, Director of Care & Support Services

OVERALL OPINION As a provider of services to people where capacity is a real issue we welcome the introduction of ‘The Mental Capacity Act’ All social care staff will have a legal framework to work within when working with people who genuinely do lack capacity for the first time

OVERALL OPINION (2) The five key principles now need to be engrained within a new culture of service delivery to vulnerable people As providers we have made significant changes to the way that we deliver services and the new legislation will further formalise our approach to person centred, rights and choices and vulnerable people being at the forefront of the decisions that have an effect on their lives

THE FIVE KEY PRINCIPLES IMPACT ON PROVIDERS Presumption of capacity unless it is proved otherwise Right to be supported to make their own decisions Right to make what might be seen as eccentric or unwise decisions All decisions for or on behalf of people without capacity must be in their best interest All decisions / actions must lead to the least restrictive of their basic rights and freedom

THE IMPACT ON PROVIDERS Staff attitude to decision making must change – we are not the decision makers unless the assessment of capacity clearly sets out the criteria for us to make decisions Changes to relationship development – shift in power Staff who work with and care for people who lack capacity currently take day to day decisions for them, but have no protection in law if someone complains about decisions they have made on behalf of people they care for – they now have protection

THE IMPACT ON PROVIDERS (2) The decision about capacity will be set within a clear statutory framework of assessment thus placing decisions about capacity within the role and responsibilities of others who have clear jurisdiction to make decisions about capacity There will be a referral process to other professionals for assessment of capacity – others will determine if someone has the capacity to make a decision or not e.g. ‘to take on a tenancy, community living as opposed to residential care, decisions on the care and support they receive etc.

THE IMPACT ON PROVIDERS (3) The Act further enhances the providers responsibility to ensure that vulnerable people are at the heart of all decisions that are made As providers we will have to clearly demonstrate that any decision we take is in the best interests of the individual – it will be interesting to witness how this will impact on say ‘Notices seeking eviction’, withdrawal of / changes to a service Providers will have a simple, coherent framework that will improve the system for settling disputes and dealing with welfare issues

THE IMPACT ON PROVIDERS (4) Providers will be required to provide full complete information in a form that a person can understand, using techniques such as pictures, symbols and communication aids and the use of interpreters, such as speech and language therapists to enable a person to make a decision. Staff who know the individual best must now be fully consulted Providers must see decision making as a process and not ‘one off’ events

THE IMPACT ON PROVIDERS (5) The fifth principle will have a major impact on service providers – any failure to observe the least restrictive decision could be construed as having abused the person concerned and will potentially be a criminal offence Restraint is now only permitted if the person using it reasonably believes it is necessary to prevent harm to the individual and it must be proportionate to the likelihood and seriousness of the harm Massive implications on raising awareness of staff and organisations to the full impact of The Mental Capacity Act. Training and development implications for frontline staff

THE IMPACT ON PROVIDERS (6) Independent Mental Capacity Advocate Service A positive addition to the protection of those who lack capacity. Will also be a provider support as well when disputes arise and a challenge to the decision maker Further elements of protection for people who lack capacity – also providers who currently manage the financial needs of individuals

PROVIDER CONCERNS No clear definition as to who qualifies as a decision maker for social care decisions – who will have the responsibility for instigating capacity assessments? Will there be sufficient resources to ensure the spirit of the Act will be fully honoured? Best estimate of the potential difficulties in resources is that there are more than 700,000 people in the UK with dementia – projected to rise to 850,000 by 2010 – about 145,000 adults in England have severe and profound learning disabilities

PROVIDER CONCERNS (2) Until now, it has merely been good practice to involve all stakeholders including service users in drafting care / support plans, but the Act makes it a legal requirement The key to coverage of sections of the Act is that proper assessments of capacity and best interest and their agreed actions are included in the care / support plan If capacity assessments are not in place, some duties carried out by providers could be a civil wrong or a crime in October 2007

PROVIDER CONCERNS (3) Will other procedures for the protection of individuals be amended to take account of The Mental Capacity Act? Those involved in the process of assessment must have time to get to know the individual It is crucial that the approach to implementing The Mental Capacity Act take a ‘person centred’ approach – focus on individual’s wants, what they can do and what they want to be able to do

CONCLUSION As a provider of services, we welcome The Mental Capacity Act as a further enhancement of the changing culture and transfer of power, rights and choices to some of society’s most vulnerable people