1. The Mental Capacity AssessmentWhen a Mental Capacity Assessment must be carried outA mental capacity assessment must be carried out whenever: Show
Need to Know Under the Act mental capacity is both 'decision specific' and 'time specific'. This means that the principles of the Act must be applied each time that a decision needs to be made. The purpose of the Mental Capacity AssessmentThe purpose of the mental capacity assessment is to:
Under Section 3 of the Act a person is unable to make a decision for themselves if they are unable to do one or more of the following:
Understanding informationUnder the Mental Capacity Act it is important that information about the decision is provided to the person in the most appropriate way, based on their specific circumstances and needs. This could include, but is not limited in any way to:
It is not lawful to decide that a person cannot understand information when it has been given to them in an inaccessible way. Retaining informationThere is no legal requirement about how long a person must be able to retain information for, only that they must be able to retain it long enough for the decision to be made. It is the responsibility of the practitioner assessing to determine how long a person needs to retain information for based on the specific circumstances and nature of the decision to be made. Weighing up information to make a decisionUnder the Mental Capacity Act a person is deemed able to weigh up information to make a decision if:
The Mental Capacity Act only expects the practitioner to assess the person's ability to understand those implications and consequences that are 'reasonably foreseeable'. Communicating the decisionUnder the Mental Capacity Act communication of the decision by the person does not only mean verbal communication of the decision. This can include, but is not limited to:
It is not lawful to make a decision about the person's ability to communicate based solely on their ability to communicate verbally. The balance of probabilityMental capacity is complex and it can sometimes be difficult to categorically say that a person is unable to make a decision. Often there may be:
The balance of probabilities is the legal threshold by which a person's capacity must be decided when this is not clear. This is the threshold applied by the Court of Protection. Making a decision on the balance of probabilities means deciding whether it is more likely or not that a person has (or lacks) capacity based on all of the available evidence. 2. Decisions that can be made under the ActThe Decision MakerIf a person is found to lack capacity to make a particular decision the Mental Capacity Act (when applied correctly) provides statutory powers for individuals (such as a carer) and organisations (such as a Local Authority or ICB) to make a decision on their behalf without the need to go to Court. The person making a decision under the Mental Capacity Act is called the Decision Maker and the process that they must use to make decisions is set out as a statutory principle of the Act, most commonly referred to as the Best Interests principle. Click here to access the guidance about applying the Best Interests principle to make a decision. Need to Know The role of the Decision Maker will normally be the responsibility of the following people, where they exist:
Decisions that can be madeA range of decisions can be made by the Decision Maker, including:
A Decision Maker can refer the matter to the Court of Protection if a decision cannot be made about:
Need to know If the decision to be made relates to life sustaining treatment the Decision Maker must not be a person motivated by a desire (or a perceived desire) to bring about the person's death. 3. Decisions that cannot be madeThere are some decisions that cannot ever be made on behalf of a person. These are called 'excluded decisions' and are set out in sections 27, 28, 29 and 62 of the Mental Capacity Act. If a person is found to lack capacity to make any of these decisions:
Decisions concerning family relationships (section 27)
Mental Health Act matters (section 28)When a person lacks capacity to consent and is receiving (or will be receiving) treatment regulated by section 4 of the Mental Health Act 1983, the Mental Capacity Act cannot be used to consent to, or authorise such treatment unless:
When providing Care and Support to a person who is subject to a Community Treatment Order (CTO) under section 64B of the Mental Health Act any decision made cannot be made under the Mental Capacity Act. This is because the Mental Capacity Act cannot lawfully be used to:
Voting Rights (section 29)In respect of a referendum or at an election for any public office, no other person or organisation can use the Mental Capacity Act to make a decision:
Unlawful killing or assisting suicide (section 62)Nothing in the Mental Capacity Act affects criminal law relating to murder, manslaughter or the assistance of suicide. 4. Making Decisions under the ActThe Best Interests principleBest Interests is a statutory principle set out in section 4 of the Act. It states that 'Any act done, or a decision made, under this Act or on behalf of a person who lacks capacity must be done, or made, in his best interests'. Because the Best Interests principle is a statutory principle there is a legal requirement for all Decision Makers to apply it when making decisions on behalf of a person who lacks capacity. It is important that the Best Interests principle under the Mental Capacity Act is not confused with any other phrase 'best interests' that may appear in other contexts. Before making a decisionThe Mental Capacity Act requires the Decision Maker to consider the following before proceeding to apply the Best Interest principle:
The Decision Maker must decide, based on this information whether to:
The role of the person in the decisionUnder the Mental Capacity Act the Decision Maker must, whenever it is reasonably practicable to do so:
It is unlawful to solely base any decision not to involve the person directly on any of the following:
Need to Know Generally, something is deemed 'reasonably practicable' if anybody that is asked would deem it to be an appropriate action based upon the presenting circumstances. Regardless of the person's direct involvement in the decision, the Decision Maker must, as far as it is reasonably ascertainable, understand and consider:
When considering the person's past and present wishes and feelings the Decision Maker must give specific regard to any written statement of the person made when they had capacity. The role of othersThe Decision Maker is legally required under the Act to consult with, and take into account the views of the following people whenever it is practicable and appropriate to do so:
When involving others the Decision Maker must specifically take into account their views about:
The Independent Mental Capacity Advocate (IMCA)Some decisions require the Decision Maker to appoint an IMCA if:
These decisions are those relating to:
Relevant circumstancesUnder the Mental Capacity Act the Decision Maker must consider all relevant circumstances when making a decision. Relevant circumstances are defined in the Act as:
It is the responsibility of the Decision Maker to identify and determine which factors are relevant when deciding on the need to consult with, and take into account the views of others. Making a decisionAny decision made under Best Interests cannot be made solely on the basis of the person's:
Any decision made must take into account:
Lawful decision makingAny decision made, and subsequent action taken to effect that decision will be lawful so long as the Act has been applied and:
5. Decisions in Specific CircumstancesDecisions that deprive the person of their libertyUnder section 4A of the Act any decision cannot deprive the person of their liberty, unless:
Decisions to use restraintRestraint is defined under the Mental Capacity Act as:
Under section 6 of the Act any decision cannot authorise the use of restraint, unless:
Conflicts with other decisionsUnless the decision relates to the provision of life sustaining treatment it cannot conflict with a decision that has already been made by:
Decisions to take part in researchSections 30-34 set out the rules around people who may lack capacity taking part in research projects. Anybody carrying out research is required to have a formal process in place to ensure that:
If a person does not have capacity to consent a decision under the Mental Capacity Act can only be made when the research is connected with:
Furthermore, the decision can only be made when:
Where there will be a negative impact this must be:
The body wishing to carry out research must take reasonable steps to identify and consult with the following people when making a Best Interest decision:
The following views must be sought from those consulted:
If anyone consulted advises that the person would likely have declined to take part in the research, if they had capacity the body wishing to carry out the research must:
Where a decision is made for the person to take part in the research they must be withdrawn from it if:
When important decisions must be made but there is not yet much information available multiple select question?When important decisions must be made, but there is not yet much information available, people tend to spread rumors about what is happening. people frequently assume the worst. leaders lose credibility if people think they are withholding information.
How can people boost their credibility when delivering bad news?To increase your credibility in a bad-news situation, ditch a down-in-the-mouth demeanor. As a leader, give helpful straight talk about the substantive issue. Learn more ways to deliver news and communicate with your team in Communicate With Confidence!: How to Say It Right the First Time and Every Time.
Why is it important to gather facts from a variety of sources so you can make fair?Why is it important to gather facts from a variety of sources so you can make fair, objective decisions before delivering bad news? Although the situation might be upsetting, usually the solution should not be based on emotion. Your initial interpretation of the situation might not be the only valid way to look at it.
Which suggested approaches when delivering bad news?Be clear and concise to minimize the chances of confusion or back-and-forth communication. Help the receiver understand and accept the news. Maintain trust and respect for the business or organization and for the receiver. Avoid legal liability or erroneous admission of guilt or culpability.
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