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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 * * * * * * MCA- What s in a ... – PowerPoint PPT presentation

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Title: Mental Capacity Act


1
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.

6
2nd Phase Implementation
  • From 1st October the rest of the Act applies!

7
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.

10
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.

11
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.

13
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?

14
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.

15
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?

16
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.

17
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?

18
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.

19
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
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