Supported Decision Making

Mental Capacity Act

When a person reaches the age of 16, they legally have a right to make their own decisions. Decisions can be made about a number of things, from day to day decisions such as what to eat or wear, to bigger decisions such as where we’d like to study or work, or if we consent to a medical procedure.

Some people are easily able to make their own decisions, while others may need assistance or support in making decisions. The Mental Capacity Act is there to legally protect those who are less able to make decisions.

To establish whether a person has capacity to make decisions, these four questions will be asked:

• Can they understand the information to help make that decision?
• Can they retain that information?
• Can they weigh up that information?
• Can they communicate their decision to others?

Just because someone is disabled, isn’t used to making decisions, or struggles with handling complex information, this doesn’t mean they can’t make some or all decisions for themselves with the right support.

Rules to follow

It can be difficult as a parent or carer to know whether to make decisions for them or to let them make decisions for themselves. The Mental Capacity Act uses five rules to follow to help decide:

• Start by assuming everyone can make their own decisions
• Give the person as much support as possible to help them make their decision
• You can’t stop a person making a decision just because you or someone else thinks it’s wrong or a bad choice
• If someone can’t make a decision themselves and you have to do it for them, the decision must be made in their best interests. The Mental Capacity Act offers a checklist to determine whether something is in someone’s best interests.
• If you have to make a decision for someone else, it should limit their freedom or rights as little as possible

Presumption of Capacity

Adults have the right to make their own decisions.

There is an assumption to have capacity to do this unless proven otherwise.

We have to assume adults CAN make decisions.

Individuals supported to make their own decisions

Every effort should be made to encourage and support adults to make their own decisions.

Even if lack of capacity is established it is important to involve the individual person as much as possible in decision-making.

Unwise Decisions

An unwise decision is not a reason for assuming a lack of capacity.

There is an intrinsic right to make decisions others may regards unwise.

People have different values, preferences and beliefs.

Causes for concern if:

• Repeatedly unwise decision putting them at serious risk of harm, abuse or exploitation; or
• unwise decisions that are obviously irrational or out of character.

Best Interests

Everything or anything for or on behalf of a person lacking capacity must be done in their best interests

MCA gives a non-exhaustive factors checklist decision-makers must work through.

Wishes and feelings can be in a written statement and the person determining capacity must consider this.

Those caring for a person who lacks capacity have to be included in a best interest decision-making process.

Less restrictive option

When making decisions for or on behalf of a person lacking capacity must consider:

• Whether it’s possible to decide or act in ways that would interfere less with a person’s rights and freedom of action or
• Whether there is a need to act at all.

Interventions should be weighed up against the individual circumstances of the case.

The Deprivation of Liberty Safeguards (DoLS)

Mental capacity act is bringing in changes about mental capacity and Deprivation Of Liberty Safeguards from April 2023 (postponed).

The Deprivation of Liberty Safeguards (DoLS) can only be used if a person is in hospital or a care home.

Independent Mental Capacity Advocates (IMCA) are a legal safeguard for people who lack the capacity to make specific important decisions, mainly about where they live and serious medical treatment.

DoLS – Care homes or hospitals must ask a local authority if they can deprive a person of their liberty. This is called requesting a standard authorisation.

The IMCA role is to support and represent the person in the decision-making process. Essentially they make sure that the Mental Capacity Act 2005 is being followed.

Test to Assess Capacity

Every effort should be made in finding ways to communicate with a person before deciding they have lack of capacity to make a decision based on their inability to communicate.

Involve family, friends, carers, other professionals.

The assessment must be made on the balance of probabilities. Have evidence showing the reasons you came to your conclusion about the lack of capacity about a decision.

Sometimes there will be bigger decisions to make and The Purpose of a Mental Capacity Assessment is to

Determine the presence of an impairment of, or disturbance in the functioning of the mind or brain (stage 1); and

Where an impairment or disturbance exists, determine whether this is preventing them from making the decision (stage 2).

Best interests decision making

Decision-maker is the person who has to make the decision, usually the parent/carer, or a professional when making decisions about treatment, care arrangements or housing.

E.g. Health workers administering the COVID-19 Vaccine must receive consent from the individual before administering the vaccine.  Young people must be given all of the information available to enable young people with learning difficulties to make their own decision about whether to have the vaccine.  If they lack capacity the health worker can make that decision but only after they have satisfied themselves via a best interest meeting with other professionals and the parent or carer.

You are the day to day decision maker about most education decisions – in conjunction with the YP.  Generally there will be no need to assess capacity.  Staff are doing this on a daily basis – encouraging and supporting decisions to be made by the YP every day, part of daily practice.

However there may be times when there is still a role for the school in supporting the YP to understand the decision on the table and contributing to discussions around their capacity and making best interest decisions.

Who should Assess Mental Capacity?

The person who assesses mental capacity should be the person who is either:

• Involved in supporting the person at the time that the decision needs to be made; or
• The person with responsibility for making a decision if the person is unable to do so.

The person assessing capacity must understand the decision to be made and be able to provide all of the relevant information to be able to assess the person’s ability to make the decision for themselves.

For example:

A carer or support worker may assess the person’s capacity to choose whether to have a bath or what to eat;

A district nurse may assess their capacity to consent to having a dressing changed;

A dentist may assess their capacity to consent to having a filling;

A GP may assess their capacity to take a certain medication

A Deputy appointed by the Court may assess their capacity to manage finances (unless the YP has an appointed deputy)

A social worker may assess their ability to make a decision where to reside;

An Occupational Therapist may assess their ability to use a specific piece of equipment safely;

A consultant may assess their ability to consent to major surgery.

A post 16 class teacher may assess their ability to decide on and consent to a work placement opportunity but it won’t generally be a decision you have to make alone (and as I said only when they have been found to lack capacity).

Day to Day decisions

How do we ensure we are applying the MCA every day?

Do share information with parents – aids the continuity of person centred approach and open communication and it helps to build parental trust.

Do consider capacity and lack of capacity and therefore best interest decisions when there are opportunities for them to make decisions – Do remember this is time specific – does the YP have the capacity to make this decision at this time?

Do continue to obtain Consent and permission for activities etc. – best practice protocols, health and safety considerations, accessibility arrangements, planning etc.

Post 16 Transitions

When to record capacity and decisions and how?

• Generally next placement and work experience options but could be others. Discuss with SLT if unsure.
• Assume capacity and timing of the decision to be made.
• Consider the support available to aid decision making.
• If capacity in doubt complete the checklist for assessing capacity.
• Discuss with team who should be involved with making best interest decision.
• Record capacity assessment outcome, next steps and decision made.

Mental Capacity Act and Social Care

Where do we fit within their capacity assessments? 

• should be invited to contribute where big decisions are made because we have knowledge about the YP & family confidence and can contribute to best interest decisions.
• Challenge decisions if needed.

When do we refer to social care to carry out capacity assessment?

• Life decisions, moving out of home or between accommodation, disputes between individuals
• How should the mental capacity act impact on our interactions with Social Care?
• Where do we fit within their Capacity Assessments? School has intimate knowledge of pupils and should have this evidenced as part of the learning at the school setting, pupil records, termly targets etc. According to the MCA, everyone who are involved about a specific issue that needs a decision to be made about, should participate in the process so the pupils and their families are confident that school is acting to benefit pupils as much as is possible.
• Social care can be referred to when there is a life decision to be made that involves the young adult moving from the family home and requiring alternative accommodation or when there is dispute between the parent wanting the YP to remain at home but the YP wants to move out or vice versa, especially where the school feels a decision is being taken and it is not in the YP’s best interest.

How do we play the role of conduit between social care and parents? 

• Signpost to information and support
• Open communication
• Workshops for parents on MCA

Ensure that parents know where they can gather information and support. Resource sheet to follow on specific links to the MCA but also the role of deputyship, deprivation of liberty etc

Continue with open communication about processes and timing of things.

Offer direct sessions or workshops to parents and carers to inform and support families.