Mental Capacity Act

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Mental Capacity Act Young People in Transition

• Richard Bartholomew
• Joint Regional Lead-Mental Health Legislation,
  CSIP West Midlands

2
MCA- Whats in a Name?

• MCA not just for adults with mental health
  problems.
• MCA applies to young people 16 with capacity
  issues.
• It can ALSO apply to under 16s where the child
  has an impairment of mind or brain and lacks
  capacity currently and is likely to still lack it
  for financial purposes at 18 years (s2.6).
• S44 offence of wilful neglect/ill treatment of a
  person without capacity can also apply to under
  16s.

3
MCA Under 18s

• All of the Act applies to under-18s except-
• 1.Lasting Power of Attorney can only be made by
  over 18s with capacity.
• 2. Advance decision to refuse medical treatment
  can only be made by over 18s with capacity.
• 3. The Court of Protection may only make a
  statutory will for a person aged 18.

4
The Five Principles

• A person must be assumed to have capacity until
  proved otherwise.
• A person must not be treated as w/out capacity
  unless all practicable steps have been taken to
  support them.
• A person is not to be treated as unable to make
  decisions just because they have made an unwise
  one.
• If an act is done, or decision taken, for someone
  else it must be done in their best interests.
• Where action is taken for another it must be the
  least restrictive of the persons rights and
  freedom of action.

5
1st Phase- Implementation of MCA

• From 1st April this year the following parts are
  in operation-
• The Code of Practice-we all have a duty to have
  regard to it if working with someone who lacks
  capacity in a Professional capacity.
• Criminal offence of ill-treatment (s44).
• Independent Mental Capacity Advocacy (IMCA)
  Service-for people without an unpaid rep who is
  facing serious medical treatment, a change of
  address or a Vulnerable Adult investigation
  either as alleged victim and/or as perpetrator.

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2nd Phase Implementation

• From 1st October the rest of the Act applies!

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Melvyn (14 years)

• You receive notification from Education that
  Melvyn has special educational needs due to
  severe birth trauma. He is also in Looked After
  System due to abusive parenting.
• In the course of the assessment it becomes clear
  that he is about to get a sizeable award for the
  injuries received at birth. He does not appear to
  have capacity around finance.
• The birth family try to make contact again.
• Can Childrens Services use the Court of
  Protection to protect Melvyns life-time
  financial award so that it is always available
  for his needs?

8
Melvyn (nearly 18)

• Melvyns care needs are developing as he does. He
  is currently placed in a Residential Special
  School, which will continue to provide for his
  needs until 18.5 years.
• There are a range of possibilities open to Melvyn
  thereafter, which are likely to be long-term
  placements.
• Given his family background, he has nobody apart
  from staff to help with this process of moving
  on.
• Is there anyone who might help with the process,
  to whom it would be unlawful to not refer him ?

9
Tom (from Code of Practice12.4)

• Tom was 9 when a drunk driver knocked him off his
  bike. He received severe head injuries and
  permanent brain damage.
• He gets a large award and is unlikely to have the
  capacity to manage it when he reaches 18.
• The court of protection appoints Toms father as
  deputy to manage his financial affairs on Toms
  behalf.

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The Court of Protection

• For under 18s the Children Act obviously applies
  BUT the Court of Protection could decide to make
  an order where the young person lacks capacity
  and-
• Appoints a property affairs deputy
  (parents/solicitor) if award made.
• Court decides to make a welfare decision where
  parents are not acting in best interests.
• Dispute on best interests for care welfare
  between a medical team and others involved.

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Back to the 5 Principles-No1 Assume Capacity-

• You are working with a young person and you do
  not know how they handle money, the parents
  actually do all the money things for them. You
  might go shopping with them over several sessions
  and see whether with support they know how to, or
  can learn, simple monetary transactions.

12
Back to the 5 Principles-No 2 All Practicable
Support

• In the course of our assessment we will want to
  establish with the young person exactly what they
  can, and cant, do-at the moment.
• Imagine a Service User at AE having had a
  traffic accident. They are in distress but
  currently have no speech, they are just making
  noises and gestures. Capacity looks doubtful
  about treatment.
• Then someone recognises from an introductory
  course attended that BSL is being used .
• An interpreter is found and proper communication
  is established and capacity confirmed.

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Back to the 5 Principles-No 3Unwise Decisions

• Samantha 17 has cerebral palsy and considerable
  care needs. She receives care from Childrens
  services that triggers an ILF award. Her mother
  manages this.
• S decides that she wants to have Direct Payments
  in time for her 18th birthday.
• During the assessment it becomes clear that she
  has lent a carer 200 from personal savings. Does
  this prove that she cant manage Direct Payments?

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Back to the 5 Principles-No 4Best Interests

• Martina 16 has become fervent about Fairtrade,
  vegetarianism and Animal Rights. She is knocked
  off her bike and has severe brain injury.
• Her father acts for her and decides when she has
  a compensation payment that he will find
  investments care that reflect her wishes.
• Best interests are not only physical but
  psychological/emotional too.

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Back to the 5 Principles-No 5Least Restriction

• Alex is seen at AE following a night out with
  friends.
• He is vomiting, sweating heavily, groaning and
  slipping into unconsciousness.
• To clear his airway a tracheotomy needs to be
  carried out urgently.
• Alex cannot consent ,being unconscious, and his
  parents are still being traced.
• What has to happen now, and on what authority?

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Capacity and Lack Thereof..

• Capacity is the ability to make decisions, great
  small, about daily life.
• When someones capacity is in question iy is only
  for a particular decision, at a particular time
  for that particular person.
• Lack of capacity may only be temporary.
• Capacity may change over time for many people due
  to alertness, effect of lack of food/drink or
  medication.

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Test for Capacity

• Does the person have an impairment of, or
  disturbance in the functioning of, their mind or
  brain?
• If so are they able to make a decision by
• Understanding relevant information?
• Retaining that information?
• Use/weigh that information/implications?
• Communicate that decision?

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Best Interests

• If we decide that a person does not have capacity
  to make the decision then it is likely that the
  decision-maker will have to make the decision
  using Best Interests principles.
• Involve the person/find out their views
• Avoid discrimination on grounds of appearance,
  condition, whatever
• Is it temporary?
• May not be motivated about bringing about death,
  by our assumptions about their quality of life.

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Resources

• Dept of Health MCA Training Materials
  http//www.dh.gov.uk/en/Publicationsandstatistics/
  Publications/PublicationsPolicyAndGuidance/DH_0744
  91 
• Code of Practice http//www.justice.gov.uk/whatwed
  o/mentalcapacity.htm 
• Making Decisions Booklets http//www.dca.gov.uk/le
  gal-policy/mental-capacity/publications.htm