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 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+.

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 3Unwise 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 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.

Back to the 5 Principles-No 5Least 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 • 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?

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.

Resources • Dept of Health MCA Training Materials http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_074491 • Code of Practice http://www.justice.gov.uk/whatwedo/mentalcapacity.htm • Making Decisions Booklets http://www.dca.gov.uk/legal-policy/mental-capacity/publications.htm

Mental Capacity Act & Young People in Transition