STOP ADULT ABUSE WEEK 10TH TO 14TH JUNE
Introduction to the Mental Capacity Act
What is it?
The Mental Capacity Act (MCA) is designed to protect and empower people who may lack the mental capacity to make their own decisions about their care and treatment. It applies to people aged 16 and over.
It covers decisions about day-to-day things like what to wear or what to buy for the weekly shop, or serious life-changing decisions like whether to move into a care home or have major surgery.
Examples of people who may lack capacity include those with:
- a severe learning disability
- a brain injury
- a mental health illness
- a stroke
- unconsciousness caused by an anaesthetic or sudden accident
However, just because a person has one of these health conditions it doesn't necessarily mean they lack the capacity to make a specific decision.
Someone can lack capacity to make some decisions (for example, to decide on complex financial issues) but still have the capacity to make other decisions (for example, to decide what items to buy at the local shop).
What does the Mental Capacity Act Say?
The MCA says:
- assume a person has the capacity to make a decision themselves, unless it's proved otherwise
- wherever possible, help people to make their own decisions
- don't treat a person as lacking the capacity to make a decision just because they make an unwise decision
- if you make a decision for someone who doesn't have capacity, it must be in their best interests
- treatment and care provided to someone who lacks capacity should be the least restrictive of their basic rights and freedoms
The MCA also allows people to express their preferences for care and treatment, and to appoint a trusted person to make a decision on their behalf should they lack capacity in the future.
People should also be provided with an independent advocate, who will support them to make decisions in certain situations, such as serious treatment or where the individual might have significant restrictions placed on their freedom and rights in their best interests.
How is mental capacity assessed?
The Mental Capacity Act sets out a 2-stage test of capacity:
- Does the person have an impairment of their mind or brain, whether as a result of an illness, or external factors such as alcohol or drug use?
- Does the impairment mean the person is unable to make a specific decision when they need to? People can lack capacity to make some decisions, but have capacity to make others. Mental capacity can also fluctuate with time – someone may lack capacity at one point in time, but may be able to make the same decision at a later point in time.
Where appropriate, people should be allowed the time to make a decision themselves.
The Mental Capacity Act says a person is unable to make a decision if they can't:
- understand the information relevant to the decision
- retain that information
- use or weigh up that information as part of the process of making the decision
What are the Deprivation of Liberty Safeguards?
The Deprivation of Liberty Safeguards (DoLS) were introduced as an amendment to the Mental Capacity Act and came in to force in 2009. They currently apply to people living in hospitals and registered care homes. The law says that no one should be deprived of their liberty unless this has been done through a process prescribed by law, and that they have speedy access to a right of appeal.
The definition remains the one set out by the Supreme Court in the Cheshire West case (2014)
A person is deprived of their liberty if:
a) They are ‘not free to leave’ = choose where to live; and
b) They are subject to continuous supervision and control; and
c) These restrictions are applied for a ‘not negligible period of time’; and
d) The person has not given valid consent or lacks capacity to give consent
Where it appears a deprivation of liberty might be occurring, the provider of care (usually a hospital or a care home) applies to the local authority for an authorisation.
What does the Mental Capacity Act have to do with Safeguarding?
People who lack capacity are also more likely to be vulnerable to abuse or neglect. A failure by organisations and/or their staff to properly understand and comply with the Mental Capacity Act has repeatedly been highlighted in Safeguarding Adult Reviews locally and nationally. The types of concern with practice include:
- Assumptions made about an individual’s capacity
- Missing or poorly performed assessments, and in some cases an absence of explicit best-interests decision-making
- Assessments not initiated or completed at appropriate points, even where multi-agency meetings had concluded that they were necessary or where there were significant concerns that a person’s decisions about care choices were placing them at serious risk
- Insufficient discussion amongst the organisations involved of differences of opinion, failure to question and explore choices and decisions with individuals
- Staff lacking confidence when an individual’s capacity is unclear or fluctuating, and where ‘unwise choices’ lead to ongoing harm to the individual
- Failure to achieve an appropriate balance between the right to choose, duty of care and mental capacity
- Lack of consideration of whether an individual’s decision-making was compromised by duress and undue influence, despite evidence of abusive relationships involving coercion and control
- Failures to question and explore choices and decisions with individuals, for example where someone may initially present as having capacity but lack the ability to action what they have said they would do. This is often referred to as ‘executive functioning’ and appears to be particularly associated with Safeguarding Adult Reviews about people who self-neglect and/or have an acquired brain injury
- Failures to understand the complexity of the situation, for example the impact of the abuse of prescription medications or other substances on an individual’s cognitive abilities
MCA Myth Buster
Myth: If I have a concern about a decision someone is making it is up to them to prove to me that they have the capacity to make it
Truth: It is the other way round. The first principle of the Mental Capacity Act is that capacity is presumed unless it can be evidenced that the person does not have the capacity to make a decision. It is up to the person proposing to make the decision on someone’s behalf to evidence that that person does not have the capacity to make it themselves. When evidencing whether someone has capacity it is important that they are treated the same way as any other adult would be and artificial barriers should not be used as a means of evidencing that they do not have capacity.
Myth: Once someone has been assessed as lacking capacity to make a decision then this applies to all decisions they want to make from then on
Truth: Mental Capacity is time and decision specific and an assumption must never be made that because someone was assessed not to have capacity at one point that it will never be regained, or apply to every situation. For example:
- Someone who has had a stroke may not have had capacity to make a significant financial decision straight afterwards, but may regain it quickly as they recover.
- Someone might not have capacity to make a complex legal decision such as selling a property, but might be able to decide which shop they want to buy their food from
Myth: Someone needs to be able to continue to retain the information needed to make a decision after the decision has been made
Truth: The person needs to be able to retain the relevant information for a decision long enough to be able to think about it and decide what to do. The Mental Capacity Act states that ‘the fact that a person is only able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.’
Myth: Someone needs to have a detailed understanding of the decision they are making in order to demonstrate that they have capacity to make it
Truth: It is not necessary that the person understands every piece of information relating to a decision in depth. What is important is that they can understand the most important information – sometimes referred to as the ‘salient factors’ - relevant to the decision
Myth: If someone has a learning disability they are automatically considered to lack capacity
Truth: A person cannot be deemed to lack capacity simply because of their learning disability. Many people with learning disabilities can and do have the capacity to make decisions, and every effort must be made to support them to make a decision considering:
- Visual aids
- Non-verbal communication
- Getting support from others
- The best time and/or the best environment
- Supporting eyesight and hearing
- Giving the person time
- A training programme that enables them to have the information they need
Myth: If someone is making an unwise decision the Mental Capacity Act says that you have to let them do it, even if it means they will be harmed, because this is part of their human rights
Truth: The Mental Capacity Act is clear that anyone has the right to make what someone else might consider an unwise decision, however, this is a complex area that has been repeatedly highlighted in Safeguarding Adults Reviews nationally. A repeated theme is where staff have not had the confidence to appropriately explore the choice the individual is making with them in order to ascertain if they have capacity, and therefore defaulted to an assumption that they are making an unwise decision. Whether something is unwise is often a matter of opinion.
Myth: If someone says they have capacity to make a decision then they do
Truth: Some people can explain a decision in great detail but be unable to carry it out. This is sometimes referred to as ‘executive functioning’ and has been highlighted by a number of Safeguarding Adult Reviews. If you have a concern about someone’s executive functioning then it is important for you to be able to evidence this, for example by exploring the decision with them or asking them to show you how they would carry out the decision.
Myth: My Next of Kin can make decisions for me if I am unable to do so myself
Truth: The term ‘Next of Kin’ is commonly used and many people presume that the person they identify as their ‘Next of Kin’ has certain rights and duties. However, in reality the term does not have any legal decision-making authority. Making a lasting power of attorney (LPA) is the best way to give someone you trust the legal authority to make decisions for you if you lose mental capacity. There are two types: one for property and finance and one for health and welfare decisions.
Myth: Nobody living in a care home for people with dementia will have capacity to make any decisions
Truth: While someone with dementia is likely to experience a significant decline in their cognitive abilities over time this does not mean that everyone living in a care home will be unable to make any decisions, and any consideration of their capacity must continue to be time and decision specific.
Myth: If I have a concern about someone’s capacity then they shouldn’t have access to the internet or social media
Truth: Where there is a concern about a person’s decision to use the internet or social media this should be treated in the same way as any other decision, with the individual being supported to make the decision themselves through, for example, a training programme that enables them to understand the decision that they are making.
Myth: I don’t have to worry about the Deprivation of Liberty Safeguards anymore now that the new Liberty Protection Safeguards have been made law in the Mental Capacity (Amendment) Act
Truth: The new Liberty Protection Safeguards are expected to come in to force in 2020. Until that date is reached the Deprivation of Liberty Safeguards remain in place and must be complied with, and if someone is being deprived of their liberty in their own home, applications will continue to need to be made to the Court of Protection
Myth:I only need to think about the Deprivation of Liberty Safeguards if a patient or service user is objecting to their placement
Truth: An application should be submitted in all circumstances where someone is deprived of their liberty in a hospital or care home.
Download the latest Safeguarding Boards newsletter: APRIL 2019
CHILD OR ADULT EXPLOITATION FORMS FROM THE POLICE:
If you believe a child or adult is vulnerable or being exploited, you can use this form to provide intelligence or information that you think the police should be aware of.