MENTAL CAPACITY ACT 2005 Introduction to the implementation

MENTAL CAPACITY ACT 2005 Introduction to the implementation of the law and how this affects people with a learning disability from age 16. Rachel Binks-Kirk- Team manager Laura Hawley- Senior Social worker

OVERVIEW OF THE MCA • The Mental Capacity Act 2005 is an Act of the Parliament of the United Kingdom applying to England Wales. Its primary purpose is to provide a legal framework for acting and making decisions on behalf of adults who lack the capacity to make particular decisions for themselves • The MCA is designed to protect and restore power to those vulnerable people who lack capacity.

OBJECTIVES OF THE SESSION • How the MCA applies to young people who are aged 16 and over • The process of assessing “capacity” • What if the young person is assessed as lacking capacity around a decision/restriction • The overlap between The Children’s Act and Mental Capacity Act • What work is done to maximise a young person’s ability to make their own decisions. • Deprivation of Liberty safeguards , what this is and an update on case law and how this is developing.

APPLYING THE MCA • The MCA applies the moment a young person turns 16 years old. • All young people are assumed to have capacity to make decisions, unless there is reason to question that they lack this ability, possibly due to an impairment of the brain. • Where there is any doubt about a person’s ability to make a specific decision, a capacity assessment would be requested and completed by the most appropriate professional. • Each decision what needs to be made is time and decision specific. • Assessing capacity is an on-going task which will continue to be undertaken for any significant decision for the young person into adulthood and there on after. • When assessed as having capacity/lacking capacity this is not a permanent “diagnosis” capacity will be revisited with every decision.

THE PROCESS OF DETERMINING CAPACITY • There is a two-stage test of capacity in order to decide whether an individual has the capacity to make a particular decision, this test must be applied • Is there an impairment of, or disturbance in the functioning of a person's mind or brain? if so • Is the impairment or disturbance sufficient that the person lacks the capacity to make a particular decision? • The Act is clear that there should not be assumptions made about an individual's lack of capacity based on either their age or appearance or condition. • The Functional Test • This is a functional test focusing on how the decision is made, rather than the outcome or the consequence of the decision. • To understand the information relevant to the decision, • To retain that information, • To weigh that information as a part of the process of making a decision, • To communicate his/her decision (whether by talking, using sign language or any other means). • This test must be complete and recorded; the documentation must demonstrate the above process.

BEST INTEREST DECISION • Once a capacity assessment has determined that the young person lacks capacity around a specific decision a best interest decision is then made. • This will include any relevant family members and friends, appropriate professionals including an advocate if identified as required. • If the young person’s representative i. e if the parent does not have any LPA (Lasting Power of Attorney- wont be granted prior to 18) or Deputyship for health and welfare (authorised by the Court of protection) then the decision maker is usually the identified professional ie- social worker who has assessed the person as lacking capacity. • If there any disputes around best interest this could lead to a decision been taken to the Court of Protection for a judge to make a decision.

THE CHILDREN’S ACT VS THE MENTAL CAPACITY ACT • Parental responsibility (PR) refers to the “rights, duties, powers responsibilities and authority which by law a parent has in relation to a child” (Children Act 1989) Parental reasonability lasts until the young person or child reaches 18 years old. • People with PR for a young person may make decisions on behalf of that young person, however from age 16 the principles of the MCA should be applied in all circumstances. • Restrictions also fall within the context of the MCA 2005, this can include things such as invasive equipment (camera’s, safety gates to prevent a person leaving a room, locked doors) The MCA does not stop these things been in place if this is the least restrictive option and can be assessed as been in place in the person’s best interest, however the important that this is care planned or recorded. • Lets give you a case example…

CASE STUDY 1 • Miss B lives at home with her mum, dad and dog. B has Autism and associated learning disabilities. B attends a local specialist school and travels on the Local Authority transport. • B is now 16 years old, her transition to adult services has started, and the worker has noted that B has a Houdini harness which she has to wear at all times when travelling- this has been in place since B was 7 years old following an incident when B opened the car door on a busy road whilst the car was moving. • As a result of this, a harness was introduced for all times when B was in a vehicle. • B has had a capacity assessment which determined that she lacked the capacity to understand why this harness was used. B did not understand the risks of travelling in a car without any safety belts on. A best interest decision needs to be made about how appropriate this is to continue to use this. • So. What steps or questions do you think might be asked prior to the best interest meeting?

OUTCOME: • A request would be made for a re-assessment of the harness by an appropriate professional- such as an occupational therapist/physiotherapist. • Information would be gathered from parent/carers in regards to any further incidents or concerns in relation to B travelling. • Transport/school would be contacted to see if they had any records of incidents or on going concerns. • Is there a least restrictive option? • Decision is then made via the assessing officer- in this case, the OT would be the decision maker.

UNWISE DECISION- WE ALL MAKE THEM! • “A person who makes a decision that others think is unwise should not automatically be labelled as lacking the capacity to make a decision. ” • Risk taking can be difficult for families/carers and professionals to accept, however the MCA highlights a person’s right to make unwise decisions if they have capacity.

DEPRIVATION OF LIBERTY SAFEGUARDS • Deprivation of liberty means taking someone's freedom away. A recent Supreme Court judgement decided that someone is deprived of their liberty if they are both 'under continuous supervision and control and not free to leave'. • The Deprivation of Liberty Safeguards is the procedure prescribed in law when it is necessary to deprive of their liberty a resident or patient who lacks capacity to consent to their care and treatment in order to keep them safe from harm. • This legislation protects a person’s rights to ensure that any restrictions in place are authorised by the court of protection. • Dols do not apply to people whom are detained under the Mental Health Act.

WELCOME TO ADULT SERVICES FUTURES + • Referrals can be accepted from age 14 to offer support from an “Enablement and transitions worker”- the support can range from specific travel training, community mapping for social activities, introduction to services, application for a travel pass. • The team work closely with education and will attend any EHCP reviews from aged 16 years. • The team is made up of a team leader, senior social worker, qualified social workers, and Enabling and transitions officers. • Adult assessment’s usually commence around the age of 17 years old. These assessments look at eligible needs of the person and can offer a range of services such as: • Personal budgets – these support people to access a range of services such as short breaks, employing a Personal assistant, supported living for long term care and support, day care provisions and much more. • If the 0 -25 team are involved, they will send a contact to the team at around age 16, if your young person does not have any services through children’s social care, you can self refer on 01482 393939 to request an assessment for services. • Services can only commence once the young person has turned 18 years old.