Written and recorded by Steph Barber, Law Hound
hello. Welcome to this mental health law training session from Data Law. This session is looking at the five stuck Tree principles off the Mental Capacity Act 2005. My name. Steph Barber and I'm a consultant with Law Hound. I'm a retired, and I was previously a member off the accredited Law Society's mental health panel. Let's start by having a look at mental capacity and the ability to make a decision. While mental capacity is the ability to make a decision for yourself, it includes the ability to make a decision that effects daily life. So, for example, what's where, what to eat, when to get up, when to go to bed as well as more significant decisions. And it also includes decisions that could have legal consequences either for the person making the decision or for others. So, for example, consenting or refusing medical treatment, making a will or perhaps making a significant purchase. According to Section two of the M. C. A. A person lacks capacity in relation to a matter if, at the material time that is at the time it needs to be made, he is unable to make a decision for himself in relation to the matter because of an impairment off or disturbance in the functioning off the mind or brain. So, for example, a disability condition or trauma, and that in accordance with Section two, subsection two is irrespective of whether the impairment or disturbance is permanent or temporary. It's about a person's ability to make a specific decision at the time it needs to be made and not their ability to make decisions in general. So the definition accepts that a person's capacity should be considered with regard to each decision. On that, a person may have capacity to make one decision, but not another onda. Also, that a person's capacity may well change over time. As we know from Section two, subsection four of the N. C. A. Capacity needs to be assessed, and any question whether person lacks capacity within the meaning of the M say must be decided on a balance of probabilities. And as the code of practice toothy EMC, a states, anyone who believes that a person lacks capacity should be able to prove their case. We also know from Section two, subsection three of the emcee A that you cannot presume a lack of capacity because of, for example, a person's age or parents or a condition that they have, or an aspect off their behavior, which might lead others to make unjustified assumptions about their capacity. Let's examine the inability to make decisions under Section three off the M. C. A. Ah person is deemed to be unable to make a decision for themselves if they are unable to understand the information relevant to the decision. Section three Subsection two makes it clear that a person is not to be regarded as unable to understand the information relevant to a decision if they are able to understand an explanation off it given to them in a way that's appropriate in their circumstances. So, for example, using simple language, visual aids or any other means, and so a person would be for a person to be able to make a decision. That person also needs to be able to retain the information relevant to the decision on so even if it's only for a short period of time, because, according to Section three subsection three, that will not prevent a person from being regarded as unable to make the decision in order to make a decision. The person also needs to be able to use a way that information as part of the process of making the Decision on communicators decision whether by talking using sign language or any other means. And under Section three, subsection four, the information relevant to a decision includes information about the reasonably foreseeable consequences off deciding one way or another or failing to make the decision. So what about the five Started three principles? Well, the N C. A. A is not intended to either control or restrict. Instead, it aimed to protect enable on support people who lack mental capacity on maximize their ability to make decisions or to participate in decision making a Sfar asses possible on DSO underpinning the emcee. A. There are five statutory principles which apply to any act on or decision made under the M C. A. Under Section one off the N. C. A. There are five stuck Cherie principles or values which underpinned the legal requirements on their contained in sections. One, subsection two through 26 and they are ah, person must be assumed to have capacity unless it's established that he lacks capacity. A person is not to be treated as unable to make a decision unless all practical steps to help him to do so have been taken without success. A person is not to be treated as unable to make a decision merely because he makes an unwise decision on the neck often or decision made under the N. C. A fall or on behalf of a person who lacks capacity must be done or made in his best interests. And finally, before the act is done or the decision is made, regard must be had toe whether the purpose for which it is needed could be is effectively achieved in a way that's less restrictive off the person's rights and freedoms. Off action on there is valuable government guidance provided within the mental capacity code of practice, or M C. A code which clearly states that it's to provide guidance on how people should interpret on apply stuck three principles when using the M. C. A. Ondas, the emcee, a code advises following the five stuck Cherie principles on applying them to the M. C. A's decision making framework will help people to take appropriate action in individual cases on help people find solutions in difficult or on certain situations. Let's look at applying the five principles principle. One is the presumption off capacity Section one, subsection two off the emcee A on a fundamental principle in common law that is now set out in the M. C. A. Is that every person has the right to make their own decisions. So a person must always be assumed have capacity unless it can be established or proved that they lack capacity to make a particular decision when it needs to be made. So this would include, for example, just because someone needs assistance in communicating. It doesn't necessarily mean that they lack capacity as the emcee, a code points out. What matters is the person's ability to carry out the protesters involved in making the decision and not the outcome. It's about striking a balance between a person's right to make a decision on their protection and safety if and when they lacked capacity to make decisions principle to the right support in making decisions, a person must be given all appropriate help and support that is all practicable. Steps to help them must be taken before it is concluded that the person is unable to make their own decisions. And so the emcee, a code makes it clear that the M. C. A is about encouraging individuals to play as big a role as is possible in decision making. It also helps prevent unnecessary interventions in their lives. So this means that all practical steps have got to be taken to help someone to make a decision for themselves so the person should never be considered as lacking capacity because they need any extra support. There's no definition of what type of helpful support should be provided to help the decision making process, because, of course, this should on most very for each individual. The emcee, a code does provide examples of the type of help or support which might be suitable as including using a different form of communication. For example, nonverbal communication such a sign language or providing information in a more accessible form. For example, photographs, drawings or tapes, or treating a medical condition which might affect the person's capacity, or having a structured programme to improve a person's capacity to make particular decisions. For example, helping a person with learning disabilities so learn new skills and care must be taken to ensure that anyone who's supporting a person who may lack capacity does not use excessive persuasion or undue pressure. So whilst it is important to provide appropriate information and advice that shouldn't be overbearing or dominating or seeking to influence the other person's decision or push them to making decision they might not of otherwise have made. So it's about providing factual information on advice rather than sharing personal opinions. Principle three is the right to support to make unwise decisions. And that is the person is not to be treated as unable to make a decision just because it might be regarded as an eccentric or unwise decision. Instead, the emcee a maintains that each person is entitled to their own set of values, beliefs, preferences on and attitudes. However, as the emcee, a code does point out that could well be cause for concern. If someone repeatedly makes unwise decisions that puts um at significant risk of harm or exploitation or makes a particularly unwise decision that's obviously irrational or out of character. And so whilst what might be regarded as unwise decisions in themselves wouldn't prove a lack of capacity, it might well indicate the need for further investigation, taking into account the person's past decisions and choices. For example, have they developed a medical condition, or disorder that's now affecting their capacity to make particular decisions? Are they easily influenced by undue pressure? Or do they need more information to help them understand the consequences off the decision that they are making principle four on best interests, any decision and anything done for or on behalf of person who lacks capacity under the emcee? A must be done or made in their best interests again, acting or making a decision must be in the best interest of a person who lacks capacity. And it's a well established common law principle, which is now set in the M. C. A. With only two exceptions relating to research on advanced decisions to refuse treatment where other safeguards apply, Section four of the emcee A sets out what amounts to a checklist of steps to follow in order to determine what is in the best interests off a person who lacks capacity to make the decision in question. Each time someone acts or makes a decision on that person's behalf, this means that they must take into account all the relevant circumstances, which, according to Section four Subsection one, are those of which the person making the determination is aware on which it would be reasonable to regard as relevance. Andi in accordance with section for the emcee, a code provides quite a neat summary to assist someone who is trying to work out the best interests of the person who lacks capacity. And that includes to encourage participation by doing whatever is possible to permit Andi. Encourage that person to take path or to improve their ability to take part in making the decision on that's in accordance with Section four subsection full when trying to work out the best interest. You should also identify all relevant circumstances that the person who lacks capacity would take into account if they were making the decision or acting for themselves. And that's two record with Section four subsection six. So it's about trying to find out the views of the person who lacks capacity, including the person's past and present wishes and feelings, which might have Bean expressed verbally in writing or through behavior and habits. Andi, it's looking at any beliefs and values. So, for example, religious cultural, moral or political that would be likely to influence the decision in question. Looking into any other factors, the person themselves would be likely to consider if they were making decision or acting for themselves. Best interests to accord with Section four Subsection one of the M. C. A is also about avoiding discrimination, including not making assumptions simply on the basis of person's age, appearance, condition or behavior. And it's also about assessing whether the person's lack of capacity is temporary on whether they might regain capacity on def. So when that might be Andi, therefore, if they could regain capacity, can the decision actually wait until then? So called with Section four, Subsection three. Best Interest also looks at a decision concerning life sustaining treatment on that best interest should not be motivated in any way by a desire to bring about a person's death nor make assumptions about the person's quality of life. To accord with Section four, Subsection five. Best interests should also include consulting with others. If it's practical on appropriate to do so on, that must be balanced with the right of privacy off the person who lacks capacity toe called with section four subsection seven on this includes consulting with those who the person lacking capacity might have previously consulted with on anyone involved in their care, including family, friends or, of course, anyone officially appointed, such as under any power off attorney. And whether decision is with regard to what the emcee a code refer to as a major medical treatment on there is no one who fits into the categories I've just mentioned, then an independent mental capacity advocate must be consulted. Best interests is also about avoiding restricting the person's rights. So considering whether there are any of options that might be less restrictive off that person's rights on best interest is about weighing up all of the factors above that we've talked about before determining what is in the person's best interests. Principal five. Using the least restrictive intervention, there must be careful consideration before taking any actions or making any decisions to ensure that the option taken is the least restrictive in terms of the person's rights on the freedoms of action and so, of course, also overlapping with what is considered best interests. But when choosing the least restrictive intervention, the person making a decision or acting on behalf of a person who lacks capacity must consider all of the options. Is there an alternative which would interfere less with the person's basic rights and freedoms? On question, weather is actually need to act or make a decision in the first place. Onda. The final decision should be made to always allow the original purpose of the decision or act to be achieved. Andi is in the best interest of the person who lacks capacity, which could mean that an action or decision is not the least restrictive but is actually in their best interest. Ondas the emcee, a code advises. In practice, the process of choosing a less restrictive option and deciding what is in the person's best interest will actually be combined. But both principles must be applied each time a decision or action may be taken on behalf of a person who lacks capacity to make that relevant decision. And that brings us to the end of this session on Thank you for joining me, Steph Barber,
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