The Mental Capacity Act and its impact on transitions Luke Turnbull Designated Nurse for Adult Safeguarding and lead for MCA & DoLS

What we’ll cover today Overview / recap of the MCA Principles of the Act Decision making for under 16s Decision making for 16-18 DoL

Mr Justice Baker “The core of the MCA is empowerment”

The Mental Capacity Act - Recap

The ability to make a decision Capacity can: vary over time vary depending on the decision to be made

MCA is simple Person has capacity – makes their own decision Person lacks capacity – Best Interest decision made MCA also makes provision for representatives, advanced decisions and advocacy Don’t forget 2nd principle that comes between these 2

The Capacity test Stage 1: Does the person have an impairment or disturbance of the functioning of their mind or brain? Stage 2: To be deemed to have capacity: Understand the information relevant to the decision AND Retain information AND Use or weigh up information AND Communicate decision Definition

Under 16s Law assumes unable to make decisions and parents will make decision As children develop they will increasingly be able to be involved in decisions and make decisions for themselves When “Gillick competent” child will be able to consent but parents (generally) should be consulted, subject to child's right to confidentiality Where child not “Gillick competent” – parents make decision (if decision is within the scope of parental responsibility) Child may lack competence due to either intelligence / maturity or because of mental disorder.

16-17 year olds MCA kicks in at 16 Assume capacity to make decisions Where p lacks capacity a person with PR is generally able to consent for care and treatment (? DoL) P could be unable to make decision but not lack capacity – parents can make decision (if in scope of PR) P could be unable to make decision but not lack capacity – because to lack capacity must be cos of “an impairment of, or disturbance in the functioning of the mind or brain” Where PR with LA and p cannot consent – LA can consent but not DoL

What the MCA CoP says Parental consent should not be relied upon when child is competent or YP has capacity Where lack competence / capacity whether parents can consent depends on: Whether this is a decision a parent “should reasonably be expected to take” including invasiveness of intervention, maturity and understanding of child or YP, whether child or YP is resisting the decision Whether “any factors that might undermine the validity of parental consent” eg parent’s capacity, disagreements between parents

Deprivation of Liberty Definition “under continuous supervision and control and not free to leave”

To be legally deprived of your liberty.. Must be in p’s best interests to protect p from harm it is a proportionate response to the likelihood and seriousness of the harm there is not a less restrictive alternative.

Deprivation of Liberty Where care plan/accommodation amounts to a deprivation of liberty (DoL) then express legal authority required. No DoL will arise if there is a valid consent to the care plan Other ways of depriving: S.25 Children Act – secure accommodation orders Mental Health Act (MHA) Criminal provisions Court order High Court or Court of Protection (CoP) ** Get legal advice Deprivation of Liberty Where care plan/accommodation amounts to a deprivation of liberty (DoL) then express legal authority required. – but parents with PR where child is under 16 can usually consent to DoL

An NHS Trust v P 2013 “The intention of the Act is not to dress an incapacitous person in forensic cotton wool but to allow them as far as possible to make the same mistakes that all other human beings are at liberty to make and not infrequently do.” J Hedley