Mental Capacity Act How it works in practice and implications for families Rhianon Gale November 2015

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Mental Capacity Act The Mental Capacity Act 2005 was implemented in It provides a framework to empower and protect people who may lack capacity, to make some decisions for themselves. Family carers need to know about this law!

Before the MCA… Before the MCA came into force, people whose ability to understand was impaired were sometimes described as ‘having no capacity’ or said to be ‘unable to consent ’ Since 2007, under the MCA, no one is described as ‘having no capacity’ and no one can ‘give consent’ on someone else’s behalf. Instead people must be involved in decisions affecting them.

Court of Protection It has several functions including: making decisions arbitrating in cases where there are disputes and differing opinions appointing deputies A specialist court for all issues relating to people who lack capacity, set up by the MCA.

Common decisions I want to ensure that my relative’s finances are looked after properly My relative needs to have healthcare treatment My relative is moving home I am helping my son or daughter to plan for adulthood (transition)

Specific decisions Whenever the term “a person who lacks capacity” is used, it means a person who lacks capacity to make a particular decision or take a particular action for themselves at the time the decision or action needs to be taken. Mental Capacity Act Code of Practice 2007

5 Key Principles We must begin by assuming that people have capacity People must be helped to make decisions Unwise decisions do not necessarily mean lack of capacity Decisions must be taken in the person’s best interests Consider whether the decision can be made in a way that is less restrictive of the person’s freedom

MCA Code of Practice Gives guidance on how the Act works in practice Describes the responsibilities of “assessors” of capacity, “decision-makers”, healthcare & social care staff and independent supporters The guidance in the Code helps family carers to understand and apply the Act (copies are free to family carers – let The Stationery Office know you are one! Tel: )

Involving family carers Family carers should be involved in making decisions affecting their relative or friend. - Supporting to make a decision - Assessing a relative’s capacity - Being consulted - Challenging a decision - Getting authority to be a substitute decision maker

Before assessing capacity You must have a reasonable belief the person lacks capacity to make the decision themselves. People must be encourage and helped to make the decision for themselves. Someone may have the capacity to make certain decisions at particular times. How capacity is assessed depends on the type of decision – if major the assessment will be formal

Who can assess capacity? You might be assessing your relative’s capacity every day Professionals; e.g. social workers, GPs, nurses, consultants Should an Independent Mental Capacity Advocate (IMCA) be involved? What if you don’t agree with the outcome?

Independent Mental Capacity Advocate (IMCA) If someone lacks capacity and doesn’t have anyone to support and represent them, they are entitled to the support of an IMCA Sometimes IMCAs are involved even when family are supporting the person

Independent Mental Capacity Advocate (IMCA) Four key functions: 1. Ascertaining the views, feelings, wishes, beliefs and values of the person using whichever communication method is preferred and ensuring that those views are communicated to, and considered by the decision maker 2. Asking questions on behalf of the person and representing them. Making sure the person’s rights are upheld and that they are kept involved and at the centre of the decision – making process 3. Investigating the circumstances. Gathering and evaluating information from relevant professionals and people who know the person well 4. Auditing the decision-making process. Checking that the decision maker is acting in accordance with the Act and that the decision is in the person’s best interests. Challenging the decision if necessary

Anyone assessing capacity has to answer: Does the person who seems to lack capacity have a general understanding of what decision needs to be made? Do they have a general understanding of the consequences of this decision? Can they weigh up this information & use it to make a decision? Is there any way you could help them to make the decision for themselves? Is there any way you can help them communicate their decision, wishes & feelings?

After the assessment If the person has mental capacity to make the decision, then they make the decision If they are found to lack mental capacity, a best interests process must be followed

Assessment checklist Communication: are you using tools and techniques to maximise the individual’s understanding, including any relevant communication aids? Location: is the place where you are communicating with the individuals and/or assessing their capacity suitable? Is it relaxed? Noise levels? Privacy? Timing: are you trying to support the individual at the best time of day for them? Ask the person themselves and those that know them best Support from other people: do you need others who are able to put the individual at ease? Do you need input from other professionals to help you communicate effectively? Is an interpreter needed? Delaying the decision: can the decision be delayed if the person is unable to make the decision themselves?

Best interests process Everyone who knows the person well should be involved, especially family carers All options must be considered, including least restrictive and long/short term Encourage and facilitate persons involvement in the decision Consider the persons past and present wishes, feelings, beliefs and values Who makes the final decision?

Best interests When working out what is in the best interests of the person who lacks capacity to make a decision or act for themselves, decision-makers must take into account all relevant factors that it would be reasonable to consider, not just those they think are important. They must not act or make a decision based on what they would want to do if they were the person who lacked capacity MCA Code of Practice para 5.7

Decisions that cannot be made in someone’s best interests: Whether to get married or have a civil partnership Whether to have sex Placing a child for adoption Voting at an election

Deputy Appointed by the Court of Protection, with authority to make particular decisions on behalf of a person lacking the capacity to do so. Two types of deputy: 1.Property and financial affairs, e.g. paying bills, organising a pension 2.Health and welfare, e.g. making decisions about medical treatment and how someone is looked after You can apply to be just one type of deputy or both. If you’re appointed, the court will tell you exactly what your responsibilities are.

Deprivation of Liberty Safeguards (DoLS) DoLS became law in 2009; separate Code of Practice They protect the right of people in care homes and hospitals who lack capacity to make decisions about their care or treatment: - where care or treatment can only be provided in a way that amounts to a deprivation of liberty (Article 5, Human Rights Act) and - where the Mental Health Act is not appropriate

Deprivation of Liberty Safeguards (DoLS) A person is deprived of their liberty, when they are: supported by the state; under continuous supervision and control; not free to leave; and the person lacks capacity to consent to these arrangements

People must be supported in a way that minimises any restrictions on them wherever possible; the least restrictive option If it is necessary to take action to deprive someone of their liberty, a DoLS must be applied for Law Commission consultation on new ‘supportive care’ and ‘protective care’ system has just ended, recommendations due in DoLS process and reform

Managing finances When making decisions about money, family carers should want to protect best interests of relatives who may lack capacity Family carers may spend money on “necessary goods & services” Keep good records May need authorisation (e.g. repairs to property) to use savings/assets

Circles of support A circle of support is a group of people who agree to meet on a regular basis, to support a friend or family member.

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