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 Mental Capacity Act 2005(MCA) in context
Define capacity and to lack capacity
Principles of the Mental Capacity Act 2005
Highlight the interplay between the MCA Code of Practice (COP) and SEND Code Of Practice
Highlight Mental Capacity Act as a way of thinking and encouraging the young person’s decision-making
Highlight making ‘best interests’ decisions
Very brief introduction to a 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 Code Of Practice 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)
Applies in England and Wales from the age of 16 years
Applies to parents and family members who care for someone who lacks capacity to make a particular decision
Referred to as MCA, its code of practice is MCA COP
Sept 2014 Children & Families Act comes into force bringing the MCA into education – SEND Code Of Practice 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 & Mental Capacity Act Code of Practice

7. Mental Capacity Act (MCA) 2005, MCA COP & SEND COP: age and language
Young person (yp) – United Nations term for age range
UK adopted 16 – 25 years as young person (SEND Code Of Practice)
16 years – 17 years 11months is Mental Capacity Act 2005 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
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 (Mental Capacity Act COP 4.1)
every day decisions e.g. what to wear, eat etc.
‘more serious or significant’ decisions (e.g. SEND Code Of Practice 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?
Mental Capacity Act Code Of Practice paragraph -
4.38 states that a young person’s capacity to make a particular decision is usually assessed by the person who needs the decision to be made
4.51 anyone 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 rests with the person who needs the decision making
4.52 Professionals should never express an opinion without carrying out a proper assessment of the young person’s capacity to make the decision
4.61 good practice to record the findings of a capacity assessment

17. 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 Code Of Practice Annex 1)
Stage 1 is omitted from SEND COP Annex 1
MCA Code of Practice Chapter 4, set outs advice about recording assessments

18. 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

19. 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’

20. 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 Mental Capacity Act 2005 Principle 1 – presumption of capacity is the default position.

21. Mental Capacity Act (MCA) 2005: parents making ‘best interests’ decisions
‘Best interests’ does not have a definition but is a guidance checklist in Mental Capacity Act 2005 COP Chapter 5
Checklist of common factors that should always be considered:
decision is not made based on label, condition, diagnosis, SEN, age or behavior
will the yp be able to make this decision themselves at a later date?
encourage your yp to participate in the decision making as far as possible
consider your yp wishes views and feelings, beliefs and values

22. Mental Capacity Act (MCA) 2005: parents making ‘best interests’ decisions
Consult others who know the yp if appropriate. For educational decisions this is likely to be educational establishment staff, specialist sensory support professionals and other education professionals
Residential placements ask about keeping the yp safe but not depriving them of their liberty

23. Mental Capacity Act (MCA) 2005: implications
MCA becomes a way of thinking
enable your yp to make their own decisions
Develop decision-making ability
Decision-making outcome in 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

24. THE END Thank you for listening