1. No decision about me without me Jane Sinson Educational Psychologist
Mental Capacity Act (MCA) and capacity assessments for young people with SI
No decision about me without me
Jane Sinson
Educational Psychologist

2. Mental capacity
Mental capacity is the ability to make a decision (MCA COP 4.1)
Ability to make a decision that affects daily life
Ability to make decisions that are more significant e.g. where to continue education
Ability to make a decision that may have legal consequences e.g. to appeal to the tribunal

3. Mental Capacity Act 2005
Enacted 2007
Provides a statutory framework for people who lack capacity to make decisions for themselves from the age of 16 years
But it is assumed everyone can make their own decisions unless it is proved otherwise (presumption of capacity)

4. Mental Capacity Act 2005
Supported by a Code of Practice (COP). Focus was mainly health and social care professionals published by the Dept. of Health
Residential special schools only need to be aware that 2009 introduced the Deprivation of Liberty Safeguards

5. 5 Key Principles of the Act:
It should be assumed everyone can make their own decisions unless proved otherwise
A person should have all the help and support possible to make and communicate their decision before anyone concludes that they lack capacity to make their own decision

6. 5 Key Principles of the Act:
A person should not be treated as lacking capacity just because they make an unwise decision
Actions and decisions carried out on behalf of someone who lacks capacity must be in their best interests
Actions or decisions carried out on behalf of someone who lacks capacity should limit their rights and freedom of action as little as possible

7. Mental Capacity Act Code of Practice
An adult:
attorney under Lasting Power of Attorney
deputy appointed by the Court of Protection
acting as an Independent Mental Capacity Advocate
acting in a professional capacity for, or in relation to a person who lacks capacity
being paid for acts for or in relation to a person who lacks capacity

8. Mental Capacity Act Code of Practice
Professionals
Variety of healthcare (doctors, nurses, therapists, dentists, radiologists, paramedics)
Social care staff
Others who occasionally may be involved in the care of people who lack capacity such as housing workers or police offices

9. Mental Capacity Act Code of Practice
From 1st September 2014
Education professionals have to have regard to the SEN Code of Practice & MCA Code of Practice

10. Why is it now in education?
Children and Families Act 2014 and new SEN Code introduces a clearer focus on the participation of young people in decision making
The MCA gives young people the right from the age of 16 years to participate in decision- making about things that affect them
Education has been out of line with health and social care in relation to young people’s formal participation in decision making

11. Why is it now in education?
Extension of the age of participation in education for young people with SEN to 25 years old
The raising of the participation in education for all young people to 18 years from summer 2015
At 18 years old young people become adults and are covered by all adult legislation and guidance

12. What does this mean for young people?
16 -17:11 months old
Children Acts 1989 & 2004
Equality Act 2010
Children & Families Act 2014
Mental Capacity Act 2005
Ofsted/Court of Protection guidance (residential special school
United Nations Convention on the Rights of the Child

13. What does this mean for young people?
16years – 17years 11 months SEN Code of Practice 8.15 after the end of Y11 young people can make decisions directly.
Health
16 years
Education end of Y11

14. What does this mean for young people?
18 – 25 years old
All adult legislation e.g. safeguarding
Equality Act
2010
Children & Families Act 2014
Mental Capacity Act 2005
Ofsted/Court of Protection guidance (residential special school

15. No decision about me without
16 – 25 years olds
No decision
about me without
me K

16. Mental capacity
Mental capacity is the ability to make a decision (MCA COP 4.1)
Ability to make a decision that affects daily life
Ability to make decisions that are more significant e.g. where to continue education
Ability to make a decision that may have legal consequences e.g. to appeal to the tribunal

17. Mental capacity: activity
How did you decide on where you went for your last holiday? Briefly write down the process you went through

18. Mental capacity. Information: Key elements of decision making are:-
what information?
in what format ?

19. Mental capacity.
Key elements of decision Remembering information Weighing up the pros and cons Communicating your decision

20. Mental capacity: activity
What decisions will young people aged 16 – 25 years need to make in relation to their education? Are there specific decisions relating to sensory impairment?

21. Mental capacity: activity
In relation to the decision about educational placement, which of these young people may need to have their capacity to make this decision assessed? Why?

22. Mental capacity: activity
Rosie is 16 years old Where does she wish to attend for her post 16 education? Rosie is 18 years old Where does she wish to attend for her post 18 education?

23. Capacity Assessments
MCA Code of Practice Chapter 4 sets out capacity assessments
2 stage process
Stage 1: to determine if an assessment is needed for this decision
Stage 2: the assessment using the 4 key questions
Language used is not the way a young person’s functioning is described in education

24. Capacity Assessments: MCA COP sections 4.10 - 4.13
Stage 1: this has 2 steps
Step step 1
Does the person have an impairment of, or a disturbance in the functioning of, their mind or brain?
Does the young person have a learning difficulty or difficulties with their emotional well-being or mental health issues?

25. Capacity Assessments: MCA COP sections 4.10 - 4.13
Stage 1: this has 2 steps Step 2
Step 2
Does the impairment or disturbance mean that the person is unable to make a specific decision when they need to?
Does the young person’s learning difficulty or emotional well-being difficulties or mental health issues affect their ability to make this decision when they need to?

26. Capacity assessment is needed
Capacity Assessments
Young person has capacity
Capacity assessment is needed
YES
YES NO

27. Capacity Assessments: activity
What are the qualities the assessor should have?

28. Capacity Assessments The assessor needs: no formal qualifications
to know the young person and the young person to know the assessor
to know about the choices and the advantages and disadvantages

29. Capacity Assessment The assessor needs:
to know how to communicate with the young person
to know how to present information to the young person
to understand the young person’s way of communicating

30. Capacity Assessments: Factors to consider
Learning difficulty
memory
attention & concentration
Understanding of language
ability to communicate
how they interpret information
cultural considerations

31. Undertaking a capacity assessment: MCA Code of Practice 4.36
Allocate sufficient time for this process
Do it at a time of day when the young person is alert (e.g. not tired)
Find a place where the person feels comfortable
Help them feel at ease
Let them have someone with them to support them

32. Undertaking a capacity assessment: MCA COP 4.36
Use language that can be understood in the preferred means of communication
Present information in the preferred format
Give the young person time to absorb the information

33. Undertaking a capacity assessment: 4 key questions: MCA COP 4. 14 – 4
Undertaking a capacity assessment: 4 key questions: MCA COP 4.14 – SEND COP Annex 1
Can the young person understand information relevant to the decision to be made?
The nature of the decision
The reason why the decision is needed
The likely effects of deciding one way or the other or making no decision at all
The young person needs to understand the key facts/ concepts not necessarily all the fine details

34. Undertaking a capacity assessment: 4 key questions: MCA COP 4. 14 – 4
Undertaking a capacity assessment: 4 key questions: MCA COP 4.14 – SEND COP Annex 1
Can they retain the information long enough to make the decision?
Can they use and weigh up the information to arrive at a choice?
Can they communicate their decision in any way?

35. Undertaking a capacity assessment: 4 key questions: MCA COP 4. 14 – 4
Undertaking a capacity assessment: 4 key questions: MCA COP 4.14 – SEND COP Annex 1
If the answer to any of the 4 key questions is NO then the young person lacks capacity
There is no partial capacity. It is either YES or NO

36. Undertaking a capacity assessment: practical activity
Plan how you would undertake a capacity assessment for Rosie in relation to her next educational placement Is there any difference if she is 16 years or 19 years?

37. Undertaking a capacity assessment: why formally record it?
Good professional practice to undertake a proper assessment and record the findings
The young person or their representative could challenge a decision that they lack capacity at the time or at a later date
If challenged you will need to show that you have applied the principles of the Mental Capacity Act 2005

38. THE END Thank you for listening