Liz Gale, Tri-Borough Mental Capacity Act Lead

What’s the Mental Capacity Act about? It isn’t about assessing capacity! It’s about individuals’ rights The purpose was to ‘empower, protect and support people’

1st 3 principles of the MCA Table discussion quiz: What are the first 3 principles of the MCA (in the right order)?

1st 3 principles of the MCA A person must be assumed to have capacity unless it is established that [s]he lacks capacity. A person is not to be treated as unable to make a decision unless all practicable steps to help him [or her] to do so have been taken without success. A person is not to be treated as unable to make a decision merely because [s]he makes an unwise decision.

1st 3 principles of the MCA They are all decision-specific No one should be categorised as ‘lacking capacity’. For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time [s]he is unable to make a decision for himself [or herself] in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.

House of Lords post-legislative scrutiny report, March 2014 House of Lords interviewed a wide range of people and received submissions from many more on whether the MCA is sensible and whether it has been well-implemented It is sensible It hasn’t been well-implemented (although there are many examples of good practice They focussed on how well the principles have been implemented, as they are fundamental to the MCA

House of Lords post-legislative scrutiny report, March 2014 There is often still an assumption of lack of capacity The presumption of capacity means that the individual does not have to prove or show that they have capacity There is often less focus on supporting someone to make their own decision than assessing than capacity to do so

Supported decision-making The focus should always be on supporting the person to make their own decision Case study table discussion: Think of a decision posed by a service-user who is being supported by you or one of your colleagues: How would you support them to make their own decision?

Framework for supported decision-making Be clear about what the specific decision is and do not make it too broad (eg consenting to care is too broad). Be clear about the timescale for the decision and why this applies. Be clear about the information that’s relevant to this decision. What are the key factors? What are the ‘salient points’? What is the least amount of information they need to know? Find out how the person normally makes a decision of this type. Who is in their circle of support? Who do they want to support them? Who is best placed to support them? Do they have or need an advocate? Are you their advocate? Think about how the person likes to communicate and any aids to communication – would they understand information better in a written format or on video (or a combination)? Is there information they could think or talk over between discussions? What time of day and location would work best?

Framework for supported decision-making Use the MCA Code of Practice – we have to follow it unless we have a good reason not to! It is useful and easy to read Table discussion: Is the suggested framework useful? Can you add to it/change it from the perspective of your service? Group feedback: Good ideas or models people want to share

House of Lords post-legislative scrutiny report, March 2014 Safeguarding and the ‘protection imperative’ often override in practice the individual’s legal right to make an unwise decision No one in their right mind would reach that decision, therefore they must lack capacity But being judged to lack capacity to make a decision is a big interference with someone’s human rights How many of us have never made a decision we know is foolish?

Supporting someone who makes an unwise decision Table discussion: How able is your service to support someone to make their own choice and uphold their right to make an unwise decision? Are there barriers to this? Are there risks to the organisation in this? What can be done to mitigate those risks? Is person-centred working enough to uphold individuals’ rights to make an unwise decision? Group feedback: Any issues it would be useful for the whole group to hear or discuss

Capacity assessment Do assess capacity if there is doubt about whether the person can make their own decision, but this will often be a joint process with supporting the person to make a decision. Recap of capacity assessment: If the problem with the way the person’s mind is working means they can’t do one of four things, they will lack capacity to make the decision What in the person’s condition will cause them difficulties with understanding, remembering or using information?

Capacity assessment Can the person understand the information relevant to the decision? If so, Can the person retain the information long enough to use it? Can the person use or weigh that information (against their own value base or priorities)? Can the person communicate their decision (whether by talking, using sign language or any other means)?

Capacity assessment The first three parts build on each other – you don’t have to look at all four. Understanding will often be the area that someone with dementia or a learning disability will struggle with Retention may be hard for someone with dementia Weighing the information might be difficult for someone with a mental health problem such as paranoia or anorexia, or impulsiveness from a brain injury

Capacity assessment Mental capacity is black and white – the person either has capacity to make the decision or they don’t On the balance of probabilities – is it more likely than not that they understand the key facts? If they have capacity to make the decision, it’s their decision (no matter what the consequences) If they don’t, the person proposing to intervene decides what’s in their best interests Best interests decisions should be incorporated in the care plan (see Code of Practice 4.28-4.61, 5.8- 5.12, 6.25-6.34)

Last 2 principles of the MCA An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests. Before the act is done, or the decision, is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.

Best interests decision-making Quiz: There are 7 points in the best interests checklist. What are they? Please shout out

Best interests checklist No assumptions/discrimination Consider all relevant circumstances Will the person regain capacity? If so, can the decision be put off till then? Permit and encourage the person to participate in the decision about them Don’t be motivated by a desire to bring about their death Consider their past and present wishes and feelings (and, in particular, any written statement), their beliefs and values and any other factors they’d consider Take into account the views of others re the person’s views and what’s in their best interests

Best interests decision-making Case study table discussion: Discuss one of the examples of a decision faced by someone you or a colleague supports – if the person lacks capacity to make the decision: Who should be consulted (next-of-kin, family member, friend, neighbour)? Why? Why not? How much weight would you attach to their views? Why? How would you find out what the person thinks? How would involve the person in the decision-making process? How do you decide which factors are relevant? How do you balance everything to reach a decision? Group feedback of any major issues/points of note

Further development Are you confident in applying the MCA and supporting colleagues to do so? Are your colleagues confident? Tri-Borough MCA Pathway is available – look for details on the Learning Centre http://lms.rbkc.gov.uk/login/index.php Tri-Borough may not be able to meet all your training needs but we do regularly review our programmes so please ask if there are specific needs Use the Code of Practice! Available on-line and as a hard copy