1. East Riding of Yorkshire Council County Hall Beverley East Riding of Yorkshire HU17 9BA Telephone 01482 887700 www.eastriding.gov.uk 1 Mental Capacity Act 2005 Whose Responsibility? Workshop

2. East Riding of Yorkshire Council County Hall Beverley East Riding of Yorkshire HU17 9BA Telephone 01482 887700 www.eastriding.gov.uk 2 Aims What are the Aims of this workshop? For you to have an understanding of key responsibilities with regard to the Mental Capacity Act 2005

3. East Riding of Yorkshire Council County Hall Beverley East Riding of Yorkshire HU17 9BA Telephone 01482 887700 www.eastriding.gov.uk 3 Mental capacity is the ability to make a decision. … including decisions about daily life, such as - what we choose to wear but also - more significant decisions like if we drink or smoke. … and also decisions that may have life changing consequences. Like: medical treatment, receiving care services, buying\selling property. Mental Capacity

4. East Riding of Yorkshire Council County Hall Beverley East Riding of Yorkshire HU17 9BA Telephone 01482 887700 www.eastriding.gov.uk 4 The Mental Capacity Act provides a legal framework to empower and protect people aged 16 + who may lack capacity to make some decisions for themselves. (from 2007) So… what is the Mental Capacity Act 2005? The Mental Capacity Act 2005

5. East Riding of Yorkshire Council County Hall Beverley East Riding of Yorkshire HU17 9BA Telephone 01482 887700 www.eastriding.gov.uk 5 For people who have limited capacity - the Act protects their right to make their own decisions. For people who lack capacity – the Act aims to ensure decisions are made in a fair & balanced way. By following the Act staff are protected when delivering care/making decisions when a person is not able to formally consent to them. Why do we need the Mental Capacity Act? To protect Individuals To Protect staff caring for / making decisions for Individuals

6. East Riding of Yorkshire Council County Hall Beverley East Riding of Yorkshire HU17 9BA Telephone 01482 887700 www.eastriding.gov.uk 6 1) Assume capacity 2)Individuals must be supported to make their own decision 3)Unwise decisions do not mean a lack of capacity 4)Any decisions made on a persons behalf must be in their Best Interests 5)Least restrictive option available The 5 Principles of the Act

7. East Riding of Yorkshire Council County Hall Beverley East Riding of Yorkshire HU17 9BA Telephone 01482 887700 www.eastriding.gov.uk 7 The person’s beliefs and values Will the person regain capacity? The person’s wishes and feelings All relevant circumstances (e.g. care needs/diagnosis etc.)Consultation Less restrictive options Participation in the decision as much as possible For life sustaining treatment the decision maker should not be motivated to bring about the persons death. Best Interests Checklist

8. East Riding of Yorkshire Council County Hall Beverley East Riding of Yorkshire HU17 9BA Telephone 01482 887700 www.eastriding.gov.uk 8 Joe: is a 42 year old man with Down’s Syndrome living in residential care. has recently been going to a local pub & made friends with a group of people. has become involved in their business & delivers packages for them during the day receives a small amount of money for making the deliveries. does not know what is in these packages - believes it is washing machine spares. Joe’s care staff have told him that he must stop these activities. They have tried to ban him from going to the pub. Joe says that the men from the pub are his friends and he can do what he likes. 1)What decision needs to be made? 2)Factors you would you take into account when making a decision on Joe’s capacity? 3)What other information do you need to help you decide? 4)Who needs to be involved? Real Life Example – Joe’s New Job

9. East Riding of Yorkshire Council County Hall Beverley East Riding of Yorkshire HU17 9BA Telephone 01482 887700 www.eastriding.gov.uk 9 1)What decision needs to be made? There are 3 linked things happening: a)Going to the pub b)Joe’s new friends c)Joe’s new job The issue that is really giving concern is Joe’s new job -What is in the parcels? -Is it legal? -If Joe is in receipt of benefits, will this paid work affect the benefits? -AND most importantly, does Joe have the capacity to make these decisions at this time Real Life Example - Discussion 1

10. East Riding of Yorkshire Council County Hall Beverley East Riding of Yorkshire HU17 9BA Telephone 01482 887700 www.eastriding.gov.uk 10 What authority do you need to make a decision for or care for / treat an adult? What protection do you have if something goes wrong? BUT if a person is not able to decide/give consent what authority do you have to care for them? Answer: Mental Capacity Act If the person has not decided/ consented what protection do you have if something goes wrong? Answer: Mental Capacity Act Answer: Consent Decisions & Consent

11. East Riding of Yorkshire Council County Hall Beverley East Riding of Yorkshire HU17 9BA Telephone 01482 887700 www.eastriding.gov.uk 11 2)Factors you would you take into account when making a decision on Joe’s capacity? Does Joe have the capacity to make these decisions at this time? Apply the two-stage test of capacity Real Life Example - Discussion 2

12. East Riding of Yorkshire Council County Hall Beverley East Riding of Yorkshire HU17 9BA Telephone 01482 887700 www.eastriding.gov.uk 12 NO Person has Capacity (Assume Capacity) NO YES Assess using the 4 points on the next slide Assessment of Capacity

13. East Riding of Yorkshire Council County Hall Beverley East Riding of Yorkshire HU17 9BA Telephone 01482 887700 www.eastriding.gov.uk 13 The MCA says that to have capacity, a person must be able to: Understand information given to them Retain that information long enough to be able to make the decision Weigh up the information available to make the decision Communicate their decision Capacity or Lack of Capacity? Failure on any one point means the person lacks capacity, but this is only at that specific time and only relates to that decision. Capacity

14. East Riding of Yorkshire Council County Hall Beverley East Riding of Yorkshire HU17 9BA Telephone 01482 887700 www.eastriding.gov.uk 14 3)What other information do you need to help you decide? It would be useful to know more about Joe: What is Joe like? Is this situation unusual for Joe? If similar things have happened before, what has been the outcome? Why do the support staff think that Joe lacks the capacity to make the relevant decision(s) about going to the pub, his new friends and his new job? N.B. They have told Joe that he must stop these activities & have tried to ban him from going to the pub. * The support staff‘s idea raises serious questions about restraint or a possible Deprivation of Liberty; The staff would need to take advice on this. Our MCA Induction training covers this in more detail. Real Life Example - Discussion 3

15. East Riding of Yorkshire Council County Hall Beverley East Riding of Yorkshire HU17 9BA Telephone 01482 887700 www.eastriding.gov.uk 15 4)Who needs to be involved? Joe’s family Joe’s close friends Support Staff (they believe that Joe does not have capacity to make the relevant decisions) Other paid workers - who know Joe well Social Worker GP (Doctor) Real Life Example – Discussion 4

16. East Riding of Yorkshire Council County Hall Beverley East Riding of Yorkshire HU17 9BA Telephone 01482 887700 www.eastriding.gov.uk 16 This case study is based on a real-life situation. What happened next? There were concerns about Joe’s ability to make the decisions involved here. However, he was able to identify the issues involved and showed some understanding of the consequences of his actions. The MCA says that ‘unwise decisions’ does not necessarily mean a lack of capacity. It was decided that: Joe did have capacity but was making an unwise decision in this case. Support staff disagreed but, although their opinions were taken into account, it was felt that their actions were limiting Joe’s independence rather than protecting him. Because Joe might be placing himself at risk and even involving himself in illegal activities, the issues were considered under safeguarding procedures. Joe was visited by a social worker & a police officer who explained the risks that he might be taking & that – if the contents of the parcels were illegal - he could be arrested. Joe agreed to stop delivering the parcels but wanted to remain friends with the men in the pub. Real Life Example - What actually happened next?

17. East Riding of Yorkshire Council County Hall Beverley East Riding of Yorkshire HU17 9BA Telephone 01482 887700 www.eastriding.gov.uk 17 Recording Your records should show how & why you came to your conclusion about the persons capacity to make that particular decision at that particular time “Any staff involved in the care of a person who lacks capacity should make sure a record is kept of the process of working out the best interests of that person.” You will also need to record accurately & thoroughly how and why a best interest decision was reached … - Code of Practice

18. East Riding of Yorkshire Council County Hall Beverley East Riding of Yorkshire HU17 9BA Telephone 01482 887700 www.eastriding.gov.uk 18 by: a carer an attorney (LPA or EPA) OR a deputy appointed for the person by the court. Penalties: range from a fine to a prison sentence of up to five years – or both. The MCA introduced two new criminal offences… ill treatment wilful neglect of a person who lacks capacity to make relevant decisions &

19. East Riding of Yorkshire Council County Hall Beverley East Riding of Yorkshire HU17 9BA Telephone 01482 887700 www.eastriding.gov.uk 19 Further MCA Reading… Mental Capacity Act 2005 (MCA) Code of Practice: www.justice.gov.uk Deprivation of Liberty Safeguards (DOLS) Code of Practice: www.justice.gov.uk Online Learning Resource: www.SCIE.org.uk