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

2. 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

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

4. The Mental Capacity Act - Recap

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

6. 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

7. 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

8. 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.

9. 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

10. 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

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

12. 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.

13. 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

14. 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