The Mental Capacity Act 2005 which came fully into effect in October 2007 provides a statutory framework to empower and protect people who may lack capacity to make some decisions for themselves: this includes people with a learning disability
The MCA is accompanied by a statutory Code of Practice which provides guidance on how it will work on a day to day basis. Anyone working in a professional or paid role with people who lack capacity will have a legal duty to have regard to the Code of Practice. It can be found on the intranet for reference
The Mental Capacity Act is underpinned by five key principles:
- A presumption of capacity – 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
- Individuals being supported to make their own decisions – a person must be give all practicable help before anyone treats them as not being able to make their won decisions
- Unwise decisions – just because an individual makes what might be seen as an unwise decision, he/she should not be treated as lacking capacity to make that decision
- Best interests – an act done or decision made under the MCA for, or on behalf of, a person who lack capacity must be done in their best interests
- Least restrictive option- anything done for on or behalf of a person who lacks capacity should be the least restrictive of their basic rights and freedoms
The Mental Capacity Act describes the following two stage test to determine capacity:
- Is there an impairment of, or disturbance in the functioning of the person’s mind or brain? If so,
- Is the impairment or disturbance sufficient that the person lacks the capacity to make that particular decision?
A person is considered able to make a decision if her/she is able to:
- Understand the information relevant to the decision
- Retain that information
- Use or weight that information as part of the process, or
- Communicate his/her decision (whether by talking, using sign language or any other means)
Consent can only be said to be valid if it is voluntary, the person knows what they are consenting to, and has a real option of saying yes or no.
Healthcare professionals must assume that the person has capacity to make decisions. The emphasis is on staff establishing the reasons why they consider that the person lacks the capacity to make each particular decision at the time it has to be made. This must be based on reasonable belief.
Health professionals must make every effort to help and support the person to maximise their potential to make their own decisions or, at least, to participate as fully as possible. Staff must consider how much information to convey to the person and how to make the most of the abilities that the person has.
This may include choosing the best time and location for the assessment, allowing the person sufficient time to become familiar with the issues and communicating in simple language or through the use of pictures and photographs.
Particular needs of people with learning disability in relation to decision making.
People with learning disabilities may have particular difficulties in relation to decision making for some of the following reasons:
- Difficulty understanding relevant information, which is linked to the person’s verbal and general cognitive skills (difficulties with attention, distractibility) and the methods used to convey information
- Difficulty retaining relevant information