Transcript Slide 1

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Maximise the capacity of those who lack or may lack capacity
to make certain decisions for themselves
Protect vulnerable adults who may have mental incapacity
from abuse and neglect
Provide clarity to families, informal carers and professionals
as to when they may act or make decisions themselves
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MCA applies to people 16 years old or older though in some
circumstances the Court of Protection will intervene for under 16 year
olds.
It covers people with the following:
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Dementia
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Learning disability
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Brain injury
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Severe mental illness
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Anyone planning for the future
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Temporary loss of capacity, for example because someone is
unconscious, because of an accident, anaesthesia, alcohol or drugs
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Click on a tablet
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Mental capacity is the ability to make a decision
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Capacity can vary over time
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Capacity can vary depending on the decision to be made
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Physical conditions, such as location, can affect a person’s
capacity
Do not assume lack of capacity because of a person’s age,
physical appearance, condition or an aspect of their behaviour
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An individual lacks capacity if they are unable to make a
particular decision
This inability must be caused by an impediment or disturbance of
the mind or brain whether temporary or permanent
Capacity can vary over time and type of decision
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1. Every adult has the right to make his or her own decisions and must
be assumed to have capacity to do so unless it is proved otherwise
by a capacity assessment.
2. People must be supported as much as possible to make their own
decisions before anyone concludes that they cannot make their own
decisions.
3. People have the right to make what others might regard as unwise
or eccentric decisions. Everyone has their own values, beliefs and
preferences which may not be the same as those of other people.
You cannot treat them as lacking capacity for that reason.
4. Anything done for or on behalf of a person who lacks mental
capacity must be done in their best interests.
5. Anything done for, or on behalf of, people without capacity should
be the least restrictive of their basic rights and freedoms.
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Finished Quiz
This is correct.
The Mental Capacity Act
2005 affects people with a temporary
loss of capacity, including people affected by
a stroke.
Return to Quiz
This answer is incorrect.
The Mental Capacity Act 2005 affects people
with a temporary loss of capacity, including
people affected by a stroke.
Return to Quiz
This is correct.
A condition such as dementia does not
automatically mean that a person is unable to
make decision or have choices. Nor should
assumption regarding lack of capacity be
made because of a person’s age, physical
appearance, or any aspect of their
behaviour.
Return to Quiz
This answer is incorrect.
A condition such as dementia does not
automatically mean that a person is unable
to make decision or have choices. Nor
should assumption regarding lack of
capacity be made because of a person’s
age, physical appearance, or any aspect of
their behaviour.
Return to Quiz
This is correct.
A person’s capacity to make decisions can be
affected by the environment. For example, a
person who finds themselves in hospital after
an accident may be confused by the
surroundings and hence less able to make a
decision.
Return to Quiz
This answer is incorrect.
A person’s capacity to make decisions can be
affected by the environment. For example, a
person who finds themselves in hospital after
an accident may be confused by the
surroundings and hence less able to make a
decision.
Return to Quiz
This is correct.
Verbal communication is not essential in making a
decision.
There are a wide variety of communication
techniques which could be used to support a
person with non-verbal communication in
making an informed decision.
Return to Quiz
This answer is incorrect.
Verbal communication is not essential in making a
decision. There are a wide variety of
communication techniques which could be used
to support a person with non-verbal
communication in making an informed
decision.
Return to Quiz
This is correct.
Making a decision which
many other individuals may feel unwise,
does not mean a person is not able to make
that decision. Everyone has the right to
make unwise decisions as long as a person
shows they have understood the possible
consequences of their decision.
Return to Quiz
This answer is incorrect.
Making a decision which many other individuals
may feel unwise, does not mean a person is
not able to make that decision. Everyone has
the right to make unwise decisions as long as
a person shows they have understood the
possible consequences of their decision.
Return to Quiz
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Next
This person’s putting
himself at risk sitting in
the road.
An assessment of capacity
will identify if he is able to
make that decision.
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Start from a presumption of capacity
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Doubts as to an individual’s capacity can occur because:
◊ Of the person’s behaviour
◊ Of their circumstances
◊ Of concerns raised by someone else
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Always assess in relation to the specific decision to be made
The question of whether a person has the capacity to make
particular decisions should be regularly considered, including when
care plans are being reviewed.
An unwise decision does not necessarily indicate lack of capacity
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Any assessment of a person’s capacity must consider their ability:
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to understand the information relevant to the decision
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to retain information for long enough to make the decision
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to use or weigh up the information relating to the decision
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to communicate their decision – by any means!
If a person being assessed is unable to do any of the above, they are
unable to make a decision for themselves. However remember that
these assessments need to be decision and time specific. Anyone must
be assessed at his or her best level of functioning.
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Anyone caring for or supporting a person who may lack capacity
could be involved in the test to assess capacity
The more significant the decision, the greater the number of people
likely to be involved
Expert testing by doctors or psychologists will be required in some
cases, but even when used may not be the only form of capacity
assessment, as capacity is time and decision specific
Who you involve depends upon individual circumstances
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Provide all relevant information
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Do not give more detail than required
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Include information on the consequences of making, or not making,
the decision
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Summarise and present options
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Consult with family and care staff on the best way to
communicate
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Be aware of any cultural, ethnic or religious factors which may
have a bearing. Make the person feel at ease
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Try and choose the best time of day for the person
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Try and ensure that the effects of any medication or treatment
are considered
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Take it easy – one decision at a time
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Don’t rush, and be prepared to try more than once
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Always keep records of any assessment
These include:
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Day-to-day
e.g.. Following the Care Plan, Mrs Begum was helped to decide
her choice of meals for the day
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Professional Records
e.g.. 2-stage test, assessment activities & outcomes, relevant
care plan information, etc.
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Formal reports/certificates of capacity
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The next slide introduces the 2 stage assessment test which
MUST be used and your records must show it has been used, even
for day-to-day assessments of capacity.
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Presumption of Capacity
Refer back to existing assessments
1 - Is there an impairment of, or disturbance in the functioning of the
person’s mind or brain?
Reasonable steps must be taken to ascertain whether the person concerned
has capacity in relation to the matter in question.
NO
YES
Person is able to give
consent and make selfdetermining decisions.
2 - Is the impairment or disturbance
sufficient to affect the person’s
decision-making capacity?
NO
Person is able to give
consent and make selfdetermining decisions.
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YES
Is the person’s capacity:
a) Permanent;
b) Temporary;
c) Fluctuating
Finished Quiz
This is the correct answer.
When assessing a person’s capacity, you should
always start from an assumption that the
person has capacity to make their own
decisions. Do not assume lack of capacity
because of a person’s age, physical
appearance, condition or an aspect of their
behaviour.
Return to Quiz
The correct answer is ‘True’.
When assessing a person’s capacity, you should
always start from an assumption that the
person has capacity to make their own
decisions. Do not assume lack of capacity
because of a person’s age, physical
appearance, condition or an aspect of their
behaviour.
Return to Quiz
The correct answer is ‘False’.
Capacity can vary depending on the decision to
be made. Some decision are easy as there is
little information to weigh up, such as
choosing what to wear. Other decisions are
more complex as a lot more information
needs to be considered, such as financial
decisions.
Return to Quiz
This is the correct answer.
Capacity can vary depending on the decision to
be made. Some decision are easy as there is
little information to weigh up, such as
choosing what to wear. Other decisions are
more complex as a lot more information
needs to be considered, such as financial
decisions.
Return to Quiz
This is the correct answer.
Doubts as to an individual’s capacity can
occur because:
 Of the person’s behaviour
 Of their circumstances
 Of concerns raised by someone else
Return to Quiz
The correct answer is ‘True’.
Doubts as to an individual’s capacity can
occur because:
 Of the person’s behaviour
 Of their circumstances
 Of concerns raised by someone else
Return to Quiz
The correct answer is ‘False’.
When a person was found to have no impairment
or disturbance in their brain or mind
function, they are fully able to make their
own decisions.
Return to Quiz
This is the correct answer.
When a person was found to have no impairment
or disturbance in their brain or mind
function, they are fully able to make their
own decisions.
Return to Quiz
Time to take a break and get a cup of coffee
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It varies depending on the individual’s circumstances and the type of
decision involved.
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Family members, informal carers as well as Health and Social Care
staff can be decision makers
Deputies appointed by the court and people who have been granted
Lasting Power of Attorney can be decision makers
Doctors and Solicitors can be decision makers, however are unlikely
to be decision makers for social activities and day-to-day care
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In determining a person’s best interests, consideration must be
given to what is best for that person in those particular
circumstances.
Whilst the views of other people will need to be taken into account,
the focus must be placed firmly on the person lacking capacity.
Priority should be given to what is objectively the best course of
action for them in that particular situation.
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Avoid making assumptions about someone’s best interest merely on
the basis of the person’s age, appearance, condition or behaviour
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Consider a person’s own wishes, feelings, beliefs and values and
any written statement made by the person when they had
capacity
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Take account of the views of family and informal carers
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Can the decision be put off until the person regains capacity?
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Involve the person in the decision making process
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Demonstrate that you have carefully assessed any conflicting
evidence or views
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Provide clear, objective reasons as to why you are acting in the
person’s best interests
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Take the least restrictive alternative or intervention
This is not an exhaustive list, however by using this checklist the
decision maker will ensure that decisions are made in the person’s
best interests.
Next
Please click each for a detailed case study
below to view explanations, then click the
Next button to move on afterwards:
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Simple Decisions
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Moderately Complex Decisions
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Complex Decisions
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Following a discussion with the home manager, staff make a best
interests decision on behalf of Esther, a care home resident with
severe dementia.
Esther has asked the staff to buy a Christmas present for her
daughter; however, she cannot remember what her daughter likes.
The staff uses Esther’s personal allowance to buy a present for her
daughter, as they did in the past, when Esther was able to ask them
to buy her daughter her favourite soap.
They keep the receipt, give it to the home administrator and write
down what they have done in Esther’s file.
As they have sufficient information to explain why and what they did,
staff will be protected if anyone asks why they bought such an
expensive soap.
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Siobhan, who has a brain injury, lives in a group home with three other
people. The staff are taking some of the service users sailing on the
local reservoir where there is a centre which provides lessons for
people with special needs.
Siobhan’s mother, Mary, is extremely anxious about her daughter
participating in such an activity but is also keen for Siobhan to have
fun with her friends. Siobhan is a little nervous about the trip, but
she is also very excited.
Having discussed the trip with Siobhan, the staff think that she should
be encouraged to participate in group activities and that if she decides
on the day that she wants to sail then she should be encouraged to
join in.
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They arrange to meet with Mary to discuss her concerns and agree
that Patrick, Siobhan’s brother, of whom she is very fond, will
accompany her on the trip. He will sail with her if she wants him to or
sit with her while others sail if she decides that she does not want to
join in.
In the case, staff have considered Siobhan’s own wishes and taken
account of her family’s views before making a best interests decision.
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Sharon is 25 and has a severe learning disability. She lives in a care
home and is close to her mother who visits regularly.
Sharon really enjoys her mother’s visits and looks forward to them.
Sharon’s sister is very ill and needs a bone marrow transplant. Sharon
lacks the capacity to agree to be a bone marrow donor.
This case study is based on an actual case where the judge decided
that Sharon could donate as it was to her emotional, psychological and
social benefit.
At a first glance, you might think that Sharon couldn’t possibly benefit
from the procedure, you might be concerned that the procedure would
hurt or distress her, and it would be in her sister’s interests, but not
Sharon’s.
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However, the judge’s decision was based on evidence that if Sharon’s
sister were to die this would have an adverse impact on Sharon’s
mother with whom she had a very close relationship.
Also, the death of her other daughter would significantly affect
Sharon’s mother’s ability to visit Sharon, which would have a very bad
effect on Sharon.
Sharon also had her own good relationship with her sister and the loss
of that would be detrimental.
Best interests go beyond what is in the person’s best interests
medically. Such serious and complex cases should be decided by the
Court.
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Acts in connection with personal care may include:
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Assistance with physical care, e.g. washing, dressing, changing
catheter
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Help with eating and drinking
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Help with travelling
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Shopping
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Paying bills
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Household maintenance
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Other community care services
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Acts connected to healthcare and treatment may include:
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Administration of medication
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Diabetes injections
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Nursing care
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Medical & dental treatment
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Emergency procedures
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The MCA 2005 creates a new criminal offence of ill-treatment and
neglect for:
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People who have the care of a person who lacks capacity
An attorney under a Lasting Power of Attorney (LPA)
or
Enduring Power of Attorney (EPA)
definition
A deputy appointed by the Court of Protection
definition
definition
(all these will be explained in detail in the New Services Module)
The penalty for this criminal offence may be a fine and/or a sentence
of imprisonment for up to 5 years.
The new criminal offence is part of a wider government policy to
protect Vulnerable Adults.
For more information, click here (link to the Multi-Agency Protection of
Vulnerable Adults in Lincolnshire Policy).
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Section 5 of the MCA 2005, provides protection against civil and
criminal charges to all who make decisions about the care and
treatment in the best interest of a person who lacks capacity, providing
they:
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Have taken reasonable steps to assess the person’s capacity
Reasonably believe that the person lacks capacity
Reasonably believe that the decision is in their best interests
Each decision must always be the least restrictive and proportionate.
The following slides show some practical examples about least
restrictive options.
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I could manage
without
assistance if I
could have a
shower!
I will be
assisting you
with your
bath today.
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You know
someone has to
come with you,
otherwise you
could get lost.
Let me tell you
about the
possibilities of
Telecare.
I want to be able
to walk around the
village on my own.
Next
With a few simple signs
and arrows around the
home, I could find the
toilet as and when I
need it.
Shall I take you
to the toilet now?
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Restraint should only be used as a last resort or in exceptional
circumstances.
The way in which it might be used must be accurately recorded in
a Person’s care plan and all instances when restraint is used must
be recorded in the case notes or file.
The decision maker must reasonably believe the person lacks
capacity.
Restraint needs to be a proportionate or reasonable response to
the Likelihood of the person suffering harm and the seriousness
of that harm.
Restraint can include physical restraint, locking a door and verbal
warnings.
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The Bournewood Case is a legal case that tested the boundary
between appropriate restraint or restriction and the loss of
Human Rights under Article 5 of the European Convention of
Human Rights - the Right to Liberty.
Further guidelines around ‘Deprivation of Liberty’ will be
available from 2008.
Next
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An advance decision is prepared when a person has capacity.
It is a decision to refuse specific treatment and is binding. This
must be written and witnessed if life sustaining treatment is being
refused.
An advance statement is an expression of an individual’s
preferences and is not binding.
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Robert is a 73 year old man with Diabetes.
Throughout his life, he has always chosen to smoke cigars and he
enjoys a glass or two of Brandy every night. Equally, Robert has made
an informed decision never to take insulin for his Diabetes.
As a result, his eye sight is poor and he has lost all sensitivity in his
hands and feet. By having made these choices throughout his life,
Robert has made an Advance Decision to refuse treatment for his
Diabetes.
If Robert were to loose capacity to make decisions about the
treatment of his Diabetes, staff at the residential unit, where Robert
now lives, will need to take into account Robert’s advance decision
under the new Mental Capacity Act 2005.
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There are special rules for people who are detained under the
Mental Health Act 1983 – in some circumstances their refusal of
treatment for a mental disorder may be overridden
Advance decisions will also be withdrawn if the person made the
decision whilst they had capacity and if they then did something
which is clearly inconsistent with the advance decision
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As part of her beliefs as a Jehovah’s Witness, Mrs V made an
advance decision never to have a blood transfusion.
10 years later following an accident, Mrs V ends up in hospital. Health
professionals have assessed Mrs V and would like to recommend a blood
transfusion. Mrs V’s friend is present who is able to tell the health
professionals about Mrs V’s previous religion and life choices. She also
tells them that she is no longer a practicing Jehovah’s Witness and
married Mr A, who is Muslim.
The health professionals decide to withdraw Mrs V’s advance decision
not to accept a blood transfusion as there is evidence that Mrs V’s
actions are inconsistent with the advance decision she made when she
was a practising Jehovah’s Witness.
Next
Time to take a break and get a cup of coffee
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Lasting Powers of Attorney
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Under a Lasting Power of Attorney (LPA), an individual can appoint
another person (an attorney or donee) or more than one person to act
on their behalf in relation to certain decisions regarding:
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Property & Financial Affair matters
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Personal Welfare matters, including Health Care
The record of LPA is a formal legal document, which must be
registered with the Public Guardian and on a prescribed form.
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The following people can be LPA’s:
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Friend
Care staff
Family
Professional
A person can be an attorney for more than one individual
They must be over 18 years old
People who are bankrupt are excluded from becoming an attorney in
relating to another person’s Property and Affairs
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An attorney appointed to look after a person’s Personal Welfare
can say what treatment an individual doesn’t want, however cannot
demand treatment the Health Care Professionals do not believe to
be clinically necessary or appropriate. There is a requirement that
they must not be motivated to bring about the person's death.
An attorney appointed to look after a person’s Property and
Financial Affairs can only make certain gifts from the property &
estate of the person lacking capacity, and must be reasonable &
appropriate.
Any appointed attorney will also be required to evidence that
decision have been made in a person’s best interests.
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Peter and Graham have been partners for the last ten years. Peter’s
father’s death from cancer was protracted and painful.
Peter has been a heavy smoker and fears a similar death. He asks
Graham to act as his attorney to make decisions about treatment on
his behalf should he lack the capacity to do so in the future.
Peter makes a personal welfare LPA, appointing Graham to refuse lifesustaining treatment on his behalf.
Next
Next
The MCA introduces 2 new organisations, click on each for a full
description:
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The Court of Protection
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The Public Guardian
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The Court of Protection has been set up to deal with decision-making
for adults (and children in a few cases) who may lack capacity to make
specific decisions for themselves.
As well as property and financial affairs, this new Court of Protection
will also deal with serious decisions affecting healthcare and personal
welfare matters.
The Court of Protection too has the duty to make a decision in the
best interests of the person lacking capacity.
The Court can also hear cases in relation to LPAs and EPAs.
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The Public Guardian helps protect people who lack capacity by:
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Setting up and managing a register of LPAs and EPAs
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Setting up and managing a register of court orders that appoint
deputies
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Supervising deputies
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Receiving reports from attorneys acting under LPAs and from
deputies
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Providing reports to the Court of Protection, as requested
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Dealing with representations (including complaints) about the way
in which attorneys or deputies carry out their duties
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An individual appointed by the Court of protection to make
decisions on behalf of a person who lacks capacity
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Could be family member, informal carer or any other person the
court thinks suitable
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16 and 17 year olds who lack capacity may be dealt with by
either the Court of Protection or the Family Court
Next
Sunita, a young Asian woman, has always been close to her older
brother, who has severe learning disabilities and lives in a care home.
Two years ago, Sunita married a non-Asian man, and her family cut
off contact with her. She still wants to visit her brother and to be
consulted about his care and what is in his best interests, but the
family is not letting her.
The Court of Protection gives Sunita permission to apply to the court
for an order allowing her contact with her brother, as it is in Sunita’s
brother’s best interest to continue a close relationship with his younger
sister.
Next
Mrs Worrell has Alzheimer’s disease. Her son and daughter argue over
which care home their mother should move to.
Although Mrs Worrell lacks the capacity to make this decision herself,
she has enough money to pay the fees of a care home.
Her solicitor acts as attorney in relation to her financial affairs under
a registered EPA, but he has no power to get involved in this family
dispute – nor does he want to get involved.
The Court of Protection makes a decision in Mrs Worrell’s best
interests, and decides which care home can best meet her needs.
Once this matter is resolved, there is no need to appoint a deputy.
Next
Next
Local service to represent the interests of:
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People who have been or are being assessed as lacking capacity to make a
serious decision about medical treatment or care
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People who have no-one to speak for them
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People whose care is arranged by their LA or NHS
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People who have been in hospital for 12 weeks
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People whose carer/relative is implicated in allegations of mistreatment or
neglect
The IMCA has a right to information about the person who lacks capacity but
is not a decision maker.
Next
Speaking Up
The DeWint Resource Centre
40 De Wint Avenue
Lincoln LN6 7JA
Tel – 0845 650 0081
Email - [email protected]
Website - www.speakingup.org
Next
Mental Capacity Act 2005 and Code of Practice – Department of
Constitutional Affairs
www.dca.gov.uk/legal-policy/mental-capacity/index.htm
Free newsletter updates – email [email protected] to
subscribe
Further Mental Capacity Act 2005 Training Materials – Department of
Health www.dh.gov.uk
Mental Capacity Act 2005 Information booklets – Department of
Constitutional Affairs
www.dca.gov.uk/legal-policy/mental-capacity/publications.htm
Public Guardian Office – www.guardianship.gov.uk
Next
This completes the tutorial.
Please click anywhere on this slide to close the PowerPoint,
then remove the CD from the computer.
Thank You.
Under a Lasting Power of Attorney (LPA), an individual can appoint
another person (an attorney or donee) or more than one person to act
on their behalf in relation to certain decisions regarding:
◊
Property & Financial Affair matters
◊
Personal Welfare matters, including Health Care
The record of LPA is a formal legal document, which must be
registered with the Public Guardian and on a prescribed form.
Next
Enduring Powers of Attorney (EPAs) were established by the
Enduring Powers of Attorney Act 1985. It is a legal document that
enables someone (the donor) to appoint one or more persons
(attorney(s)) to manage their financial affairs and property, either
now or in the future. At the onset of the person’s incapacity, the
attorney must register the EPA with the Public Guardian in order
for their authorisation under the EPA to continue.
No new EPAs can be set up after the MCA 2005 is implemented,
however existing EPAs will continue to be valid whether registered
or not.
Next
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An individual appointed by the Court of protection to make
decisions on behalf of a person who lacks capacity
◊
Could be family member, informal carer or any other person the
court thinks suitable
◊
16 and 17 year olds who lack capacity may be dealt with by
either the Court of Protection or the Family Court
Next