Mental Capacity Act 2005

A social worker might need to undertake a mental capacity assessment for several important reasons:

• decision-making ability: to determine if an individual can make specific decisions about their care, treatment, or finances. This is crucial when the person’s ability to understand, retain, and weigh information is in question due to conditions like dementia, mental illness, or brain injury
• legal requirements: the Mental Capacity Act (MCA) 2005 mandates that capacity assessments be conducted when there is a reasonable belief that someone lacks the capacity to make a particular decision. This ensures that any decisions made on behalf of the person are in their best interests and least restrictive of their rights
• protection and empowerment: to protect and empower individuals who may be vulnerable. By assessing capacity, social workers can ensure that individuals are supported to make their own decisions whenever possible and that their autonomy is respected
• tailored support: to provide appropriate support and interventions. Understanding a person’s capacity helps social workers tailor their approach, ensuring that the individual receives the right level of support to fully participate in decision-making possible

Supporting a family member during a mental capacity assessment can make a significant difference in their comfort and confidence. 

Here are some ways you can help:

• provide emotional support: be there to offer reassurance and comfort. Let them know that you are there for them and that they are not alone in this process
• help with preparation: ensure they understand what the assessment involves. You can explain the purpose of the assessment and what to expect, which can help reduce anxiety
• assist with communication: if your family member has difficulty communicating, help them express their thoughts and feelings. This might involve using simple language, visual aids, or other communication tools
• gather relevant information: collect any necessary documents or information that might be needed for the assessment. This could include medical records, previous assessments, or notes on their daily living and decision-making abilities
• advocate for their rights: ensure that their rights are respected throughout the process. This includes making sure they are given enough time to make decisions and that they are not pressured into making decisions they are uncomfortable with
• be present: if allowed, attend the assessment with them. Your presence can provide moral support and help ensure that the assessment is conducted fairly and respectfully
• follow up: after the assessment, discuss the results with them and help them understand any next steps. If there are any disagreements or concerns, assist them in seeking further clarification or a second opinion if necessary

If a family disagrees with the outcome of a mental capacity assessment, there are several steps they can take:

• request an explanation: the first step is to ask the assessor for a detailed explanation of the assessment process and the reasoning behind their decision. This can help clarify any misunderstandings and provide insight into the decision-making process
• seek a second opinion: families can request a second opinion from another qualified professional, such as a different social worker, psychiatrist, or psychologist. This can provide an alternative perspective and potentially lead to a different conclusion
• Independent Mental Capacity Advocate (IMCA): If there is no willing, able or suitable family member or friend to support the individual, an IMCA can be appointed. The IMCA can help ensure that the person’s rights and best interests are represented
• legal advice and court of protection: If disagreements persist, families can seek legal advice and may apply to the Court of Protection. The court can make decisions about the person’s capacity and best interests, and can appoint a deputy to make decisions on their behalf if necessary

This could include decisions about where to live, the support they receive or how to manage finances.

These decisions can be broken down into:

• purpose: the goal is to make a decision that benefits the person and respects their rights and preferences as much as possible
• considerations: the decision-maker must think about the person’s past and present wishes, feelings, beliefs, and values. They should also consider the opinions of family members and others who care about the person
• process: the decision should be made without discrimination and should involve the person as much as possible. It’s important to weigh all relevant factors to determine what would be best for them

As a family member, you play a crucial role in the best interest decision-making process for a loved one who lacks capacity. 

Here are some key ways you can be involved:

• provide insight: share valuable information about your loved one’s preferences, values, and past decisions. This helps ensure that any decisions made align as closely as possible with what they would have wanted
• participate in discussions: be actively involved in discussions with healthcare professionals and other decision-makers. Your input can help shape the decision-making process and ensure that all relevant factors are considered
• support and advocate: Advocate for your loved one’s rights and best interests. Ensure that their voice is heard and that they are treated with dignity and respect throughout the process
• help with communication: if your loved one has difficulty communicating, assist them in expressing their wishes and feelings. This might involve using communication aids or simply being present to support them
• understand the process: familiarise yourself with the principles of the Mental Capacity Act 2005 and the best interest decision-making process. This knowledge can help you navigate the process more effectively and advocate for your loved one
• seek support: if needed, seek support from an Independent Mental Capacity Advocate (IMCA) or legal advice to ensure that the decision-making process is fair and in the best interests of your loved one

If you have Lasting Power of Attorney, you will need to provide:

• original registered LPA document: the original document that has been registered with the Office of the Public Guardian (OPG)
• certified copy of the LPA: a copy of the LPA that has been certified as a true copy of the original. This can be done by a solicitor or notary public
• online summary: if the LPA was registered on or after January 1, 2016, you can provide an online summary of the LPA

Additionally, the professional might ask for:

• proof of identity: your name, address, and date of birth
• donor’s details: the name and address of the donor (the person who made the LPA)
• relevant account information: any specific details related to the matter at hand, such as account numbers

Ensure you also:

• request an explanation: ask the decision-maker for a detailed explanation of how they reached their decision. Understanding their reasoning can sometimes resolve concerns
• seek a second opinion: you can request a second opinion from another qualified professional. This can provide a different perspective and may lead to a different conclusion
• Independent Mental Capacity Advocate (IMCA): if the person lacks capacity and there is no one else willing or able to support them, an IMCA can be appointed to represent their best interests. You can request the involvement of an IMCA if you believe it would help
• court of protection: if the disagreement cannot be resolved through other means, you can apply to the Court of Protection. The court can make decisions about the person’s capacity and best interests, and can appoint a deputy to make decisions on their behalf if necessary
• consult legal advice: seeking legal advice can help you understand your options and the best course of action to take. A solicitor with experience in mental capacity law can provide guidance and support

As a Lasting Power of Attorney, you are responsible for:

• decision-making authority: you have the legal authority to make decisions on behalf of the person who appointed you (the donor) if they lack the capacity to do so themselves. This includes decisions about their health, welfare, property, and finances, depending on the type of LPA you hold
• best interests: you must always act in the best interests of the donor. This means considering their past and present wishes, feelings, beliefs, and values. You should also consider any written statements they made when they had capacity
• consultation: you should consult with family members, friends, and professionals who know the donor well. Their insights can help you make more informed decisions that align with the donor’s preferences and best interests
• respect and dignity: ensure that the donor is treated with respect and dignity. Involve them in the decision-making process as much as possible, even if they lack capacity to make the final decision
• legal compliance: follow the principles and guidelines set out in the Mental Capacity Act 2005. This includes ensuring that any decision made is the least restrictive option available and that it genuinely benefits the donor
• record keeping: keep detailed records of the decisions you make and the reasons behind them. This transparency is important for accountability and can be helpful if any disputes arise

As a Lasting Power of Attorney (LPA), there are specific actions you cannot take, even when making decisions in the best interests of the donor:

• illegal actions: you cannot make any decisions or take actions that are illegal. This includes anything that would break the law
• personal relationships: you cannot make decisions about personal relationships, such as consenting to marriage, divorce, or sexual relationships on behalf of the donor
• voting: you cannot vote on behalf of the donor in any elections or referendums
• deprivation of liberty: you cannot consent to the donor being deprived of their liberty without a court order
• beyond scope of LPA: You must adhere to the specific powers granted in the LPA document. If the LPA does not cover certain decisions, you cannot make those decisions
• contrary to donor’s wishes: You cannot make decisions that go against any specific instructions or preferences the donor has included in the LPA
• financial mismanagement: You must not misuse the donor’s finances for your own benefit or make decisions that are not in their financial best interests