Transcript Mental Capacity Act & Young People in Transition

Mental Capacity Act & Young
People in Transition
Richard Bartholomew
Joint Regional Lead-Mental Health
Legislation, CSIP West Midlands
MCA- What’s 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.
MCA & Under 18s
All of the Act applies to under-18s except1.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+.
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 person’s rights and freedom of action.
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.
2nd Phase Implementation
• From 1st October the rest of the Act applies!
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 Children’s Services use the Court of
Protection to protect Melvyn’s life-time financial
award so that it is always available for his needs?
Melvyn (nearly 18)
• Melvyn’s 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 ?
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 Tom’s father
as “deputy” to manage his financial affairs on
Tom’s behalf.
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.
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.
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 can’t, do-at the moment.
• Imagine a Service User at A&E 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.
Back to the 5 Principles-No 3
Unwise Decisions
• Samantha [17] has cerebral palsy and
considerable care needs. She receives care
from Children’s 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 can’t manage
Direct Payments?
Back to the 5 Principles-No 4
Best 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.
Back to the 5 Principles-No 5
Least Restriction
• Alex is seen at A&E 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?
Capacity and Lack Thereof..
• Capacity is the ability to make decisions, great
& small, about daily life.
• When someone’s 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.
Test for Capacity
1. Does the person have an impairment of, or
disturbance in the functioning of, their mind
or brain?
2. If so are they able to make a decision by
• Understanding relevant information?
• Retaining that information?
• Use/weigh that information/implications?
• Communicate that decision?
Best Interests
• If we decide that a person does not have capacity to
make the decision then it is likely that the decisionmaker 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.
Resources
• Dept of Health MCA Training Materials
http://www.dh.gov.uk/en/Publicationsandstat
istics/Publications/PublicationsPolicyAndGuid
ance/DH_074491
• Code of Practice
http://www.justice.gov.uk/whatwedo/mentalc
apacity.htm
• Making Decisions Booklets
http://www.dca.gov.uk/legal-policy/mentalcapacity/publications.htm