1. No decision about my education, without me Educational Psychologist
Understanding the Mental Capacity Act 2005 and the implications for young people and their families
No decision about my education, without me
Jane Sinson
Educational Psychologist

2. Mental Capacity Act 2005 Aims Set the MCA in context
Define capacity and to lack capacity
Principles of the MCA
Highlight the interplay between the MCA COP and SEND COP
Highlight MCA as a way of thinking when working with young people including encouraging the young person’s decision-making
Brief introduction to capacity assessment

3. Mental Capacity Act 2005 Why is it now in education?
Children & Families Act 2014 enables young people’s participation in education up to the age of 25 years; young people aged 18 – 25 years are legally adults
Children & Families Act 2014 and new SEND COP 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

4. Mental Capacity Act (MCA) 2005: Background and Context
Part of UK Human Rights legislation
Royal assent 2005, came into force in phases during 2007 supported by a Code of Practice (MCA COP)
Sits with the Department of Health (DoH)
Applies in England and Wales from the age of 16 years
Referred to as MCA, its code of practice is MCA COP
Sept 2014 Children and Families Act comes into force bringing the MCA into education – SEND COP Annex1 is the guidance, but it does indicate that education professionals have a duty to have regard for MCA COP

5. Mental Capacity Act (MCA) 2005: Background and Context
2009 Deprivation of Liberty Safeguards are introduced as an addendum to MCA COP but remained a separate document, applying to care homes and hospitals only
March 2014 Supreme Court gives a new definition of deprivation of liberty and extends the remit to all publicly funded residential placements such as residential specialist colleges, supported living
April 2015 Law Society Guidance on Deprivation of Liberty commissioned by the Department of Health

6. Mental Capacity Act (MCA) 2005 and Children and Families Act 2014
From 1st September 2014 Education professionals, working with the 16 – 25 age range, have to have regard to the SEN Code of Practice & MCA Code of Practice

7. Mental Capacity Act (MCA) 2005, MCA COP & SEND COP: age and language
Young person – United Nations term for age range
UK adopted 16 – 25 years as young person (SEND COP)
16 years – 17 years 11months is MCA COP young person
legally a child and this makes it a grey area
18+ years adult and all adult provisions apply

8. Mental Capacity Act (MCA) 2005: overview
Written predominantly for people working in the areas of health and social care
Also applies to parents and family members who care for someone who lacks capacity to make a particular decision
Language used is not the way education professionals describe a young person’s functioning

9. Mental Capacity Act (MCA) 2005: overview
The MCA:-
based on a functional approach, which represented a culture change at the time. MCA prohibits a decision about capacity based in diagnosis, label, behaviour, age or appearance (MCA COP 4.7)
introduced the notion that it is capacity for each decision- no notion of general capacity or general lack of capacity
has 5 principles which underpin every action or decision about a young person’s decision-making capacity
primary principle is the presumption of capacity
sets out the process to determine whether a young person has capacity to make the particular decision

10. Mental Capacity Act (MCA) 2005: mental capacity
Mental capacity is the ability to make a decision – any decision (MCA COP 4.1)
every day decisions e.g. what to wear, eat etc.
‘more serious or significant’ decisions (e.g. SEND COP 8.16)
long term consequences – choosing a new educational placement
involve risks
decisions that have ‘legal consequences’ (e.g. personal budgets, bringing an appeal to the SEND Tribunal)

11. Mental Capacity Act (MCA) 2005: mental capacity
MCA defines ability to make a decision comprising of 4 components.
To be considered to have capacity to make the particular decision at the time it is needed the young person needs to be able to:
Understand the information relevant to the decision
Retain the information long enough to make the decision
Use and weigh the information to arrive at a choice
Communicate the decision in any way

12. Mental Capacity Act (MCA) 2005: to lack capacity
To lack capacity the young person must:
Have an impairment or disturbance that affects the way their mind or brain works and
The impairment or disturbance affects their ability to make the particular decision at the time it is needed.
Functionally they will be unable to do one or more of:
Understanding the information relevant to the decision
Retaining the information long enough to make the decision
Using and weighing the information to arrive at a choice
Communicate the decision in any way

13. Mental Capacity Act (MCA) 2005: the five principles
The Five Key Principles of the Act:
It should be assumed that 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
A person should not be treated as lacking capacity just because they make an unwise decision

14. Mental Capacity Act (MCA) 2005: the five principles
The Five Key Principles of the Act:
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

15. Mental Capacity Act (MCA) 2005: the five principles
Principles 1 – 3 relate to the young person making their own decision
Principles 4 & 5 are guidance to the person making a particular decision on behalf of a young person who lacks capacity to do so.
For educational decisions it is the young person’s parents or representative who will make a decision on their behalf if they lack capacity to do so.

16. Mental Capacity Act (MCA) 2005: who assesses capacity?
MCA COP 4.38 states that a young persons capacity to make a particular decision is usually assessed by the person who needs the decision to be made
MCA COP 4.51anyone assessing a young person’s capacity may need a professional opinion for ‘more serious or significant decisions’ or ‘legal consequences’ decisions. This is advisory, the final decision about a young person’s capacity rests with the person who needs the decision making
MCA COP 4.52 Professionals should never express an opinion without carrying out a proper assessment of the young person’s capacity to make the decision
MCA COP 4.61 good practice to record the findings of a capacity assessment

17. Mental Capacity Act (MCA) 2005: capacity assessment
The assessor needs to know:
about the choices to be made and the advantages and disadvantages
the young person and the young person to know the assessor
how to communicate with the young person
how to present information to the young person
how to understand the young person’s way of communicating

18. Mental Capacity Act (MCA) 2005: capacity assessment
MCA Code of Practice Chapter 4, 4.10 – 4.30 sets out the process for a capacity assessment
2 stage process
Stage 1 to determine if an assessment is needed for this decision
Stage 2: the capacity assessment using the ‘four key questions’(phrase coined by author’s of SEND COP Annex 1)
Stage 1 is omitted from SEND COP Annex 1
MCA Code of Practice Chapter 4, set outs advice about recording assessments

19. Mental Capacity Act (MCA) 2005: capacity assessment
Stage 1: Does the person have an impairment of, or a disturbance in the functioning of, their mind or brain?
Does the young person have learning difficulties or learning disability, or difficulties with their emotional well-being or mental health issues?
MCA COP lists examples of ‘impairment or disturbance of mind or brain. More comprehensive list is in Chapter 2 Mental Health Act 1983 Code of Practice
YES : go to Stage 2
NO: the young person has capacity to make this decision

20. Mental Capacity Act (MCA) 2005: capacity assessment
Stage 2: Does the impairment or disturbance mean that the person is unable to make a specific decision when they need to?
YES/NOT SURE: undertake capacity assessment using the ‘four key questions’
NO: the young person has capacity to make this decision
Stage 2 question is answered using the ‘four key questions’

21. Mental Capacity Act (MCA) 2005: who may lack capacity?
Not every young person receiving support under the SEND COP or who is the subject of an EHC Plan will lack capacity. Remember MCA Principle 1 – presumption of capacity is the default position.

22. Mental Capacity Act (MCA) 2005: implications
MCA becomes a way of thinking
Encouraging parents/carers to enable their yp to make their own decisions
Develop decision-making ability
Decision-making outcome in EHC Plan
Young people understanding their EHC Plan
Communication – shared language
MCA COP vocabulary
SEND COP vocabulary
the words, signs, objects of reference etc being used to refer to the choices

23. THE END Thank you for listening