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Mental Capacity Procedure

1. Introduction

1.1 General Guidance

Everyone working with (or caring for) any young person from the age of 16 who may lack capacity must comply with the Mental Capacity Act.

This procedure should therefore be used by anyone working with a young person who is 16 years old and over.

If you are working with a young person under the age of 16 the principles of Gillick Competency apply.

Throughout the procedure where the term ‘young person’ and ‘young people’ is used this means a person who is 16 years old or over.

1.2 The Code of Practice

There is a Code of Practice to support effective implementation of the Mental Capacity Act 2005 (see Relevant Guidance).

There is a duty under the Act for all persons and organisations with a responsibility for making decisions, or carrying out acts when a young person lacks capacity to have regard to the code at all times, regardless of the existence of other guidance.

If it appears to a Court or Tribunal conducting any criminal or civil proceedings that a failure to comply with the code has occurred this will be taken into account in any subsequent determination they make.

2. Purpose and Principles of the Mental Capacity Act

2.1 The Purpose of the Act

The Mental Capacity Act 2005 is a comprehensive statutory framework that:

  • Protects the autonomy of young people (from the age of 16) who have capacity to make their own decisions; and
  • Protects people who lack capacity, by ensuring that they are always involved in decisions relating to them, and that any decisions made on their behalf are made in the right way.

2.2 Defining Mental Capacity

Someone who has Mental Capacity is able to make their own decision at the time when that decision needs to be made.

Section 3 of the Mental Capacity Act says that a young person (from the age of 16) is able to make their own decision if they can do all of the following four things:

  1. Understand information given to them;
  2. Retain that information long enough to be able to make the decision;
  3. Weigh up the information available to make the decision; and
  4. Communicate their decision.

2.3 When to use the Mental Capacity Act

The Mental Capacity Act applies whenever:

  • There are doubts over the ability of a young person (from the age of 16) to make a particular decision at a particular time; and
  • The young person has an impairment of, or a disturbance in the functioning of the mind or brain.
Need to Know

Under the Act mental capacity is both 'decision specific' and 'time specific'.

This means that:

  • A young person cannot lawfully be deemed or assumed to 'lack capacity' generally; and
  • The Mental Capacity Act must be applied for each time that a decision needs to be made.

2.4 Impairments of, or Disturbances in the Functioning of the Mind or Brain

Under the Mental Capacity Act the impairment of, or disturbance in the functioning of the mind or brain can be either:

  • Permanent or temporary;
  • Diagnosed or undiagnosed.
Types of Impairment of Disturbance Description Example
Permanent Any impairment or disturbance that is life-long or on-going Learning disability, acquired brain injury
Temporary Any impairment or disturbance that is short term Coma, confusion following an accident
Diagnosed An impairment or disturbance caused by a condition that has been formally diagnosed by a suitably qualified medical professional A personality disorder, an acquired brain injury
Undiagnosed An impairment or disturbance caused by a condition that has either not been diagnosed, is unlikely to be diagnosed or is under investigation Drug use
Alcohol use
Forgetfulness without diagnosis

 

2.5 The 5 Statutory Principles of the Act

There are 5 principles (values) that underpin the Mental Capacity Act. These are defined in section 1 of the Act and set out in the table below.

The principles must be clearly applied when using and making a decision under the Act. If they are not clearly applied any decision that is made on behalf of a young person who lacks capacity is not lawful.

  Principle In Practice
1. A person must be assumed to have capacity unless it is established that they lack capacity. Every young person from the age of 16 has a right to make their own decisions if they have the capacity to do so. Practitioners and carers must assume that a young person has capacity to make a particular decision at a point in time unless it can be established that they do not.
2. A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success. Young people should be supported to help them make their own decisions. No conclusion should be made that a young person lacks capacity to make a decision unless all practicable steps have been taken to try and help them make a decision for themselves.
3. A person is not to be treated as unable to make a decision merely because he makes an unwise decision. Young people have the right to make a decision that others would see as ‘unwise’. This does not automatically mean they lack capacity and they should not be treated as such.
4. An act done or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests. If the young person lacks capacity any decision that is made on their behalf, or subsequent action taken must be done using Best Interests, as set out in the Act.
5. Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action. As long as the decision or action remains in the young person’s Best Interests it should be the decision or action that places the least restriction on their basic rights and freedoms.

 

3. Supporting a Young Person to make their own Decision

3.1 General Guidance

One of the main functions of the Mental Capacity Act is to protect the autonomy of young people (from the age of 16) who have capacity to make their own decisions.

Put simply this means either:

  • Allowing young people who can make their own decision to do so; or
  • Providing support to young people to enable them to make their own decision.

The first 3 statutory principles of the Act set out how you must support young people to make their own decision.

This section of the procedure will support you to apply all 3 principles into practice when supporting young people to make their own decisions.

3.2 Applying Principle 1: The Presumption of Capacity

The purpose of principle 1 in practice is to prevent you from jumping to any conclusions about a young person’s ability to make a decision, or act for themself on the sole basis of:

  • Their age;
  • Their appearance;
  • Their behaviour;
  • A physical or mental health condition; or
  • Having been found to lack capacity to make a previous decision.

Under the Mental Capacity Act it is unlawful to make a presumption that a young person lacks capacity on the sole basis of any of the above.

3.3 Applying Principle 2: Practicable Steps to Support Decision Making

The purpose of principle 2 in practice is to ensure that you:

  • Uphold a young person's right to make their own decision;
  • Do not make assumptions about mental capacity based on a need to be supported when making the decision;
  • Identify appropriate support that a young person may or may not need to make a decision; and
  • Take all practicable steps to provide any support to enable the young person to make their own decision.

Practicable steps are the things that it is ‘possible and appropriate’ for you to do in order to support the young person to make a decision.

They include, but are not limited to:

  • Making sure that the young person has all of the relevant information they need to make the decision;
  • Where there are a range of choices, making sure that the young person knows about them all;
  • Explaining or providing information in a way that is easiest for the young person to understand;
  • Communicating with the young person in the way that best works for them;
  • Seeking support from others (for example with communication or to obtain specialist information);
  • Making the decision at the optimum time (taking into account things like the young person’s need for rest, time to think things over and preferred environment);
  • Delaying the decision if the young person is unwell or experiencing a fluctuation in their capacity; and
  • Making sure the young person is supported to make choices or express a view.

The steps that are practicable will vary depending on the needs of the young person and the urgency of presenting situation.

It is your responsibility to establish what steps are practicable, and wherever possible this should be agreed with the young person.

Need to Know

If a decision is required about emergency medical treatment a medical professional can decide that it is not reasonable or practical to take any steps to support the young person to make their own decision if:

  • The young person is not able to communicate decision at that time; and
  • Delays in treatment would likely lead to significant harm or loss of life occurring.

Needing support to make a decision is not uncommon and you should never assume that a young person lacks capacity to make a decision on the sole basis that they require support to do so.

Any information or advice that you give to a young person must be objective and balanced. This means that you must:

  • Explore all choices available; and
  • Give equal weighting to all choices available; and
  • When giving advice about likely consequences of a choice, make sure that your view is evidence based.

You must take care to ensure that you do not (or do not appear to) influence the young person’s decision through:

  • The use of (or apparent use of) excessive persuasion; or
  • The use of (or apparent use of) undue pressure, for example overbearing or dominating behaviour.

If the young person has experienced a significant or traumatic event prior to needing to make the decision you should consider delaying the decision to allow for them to access any:

  • Therapeutic support they may need;
  • For the effects of any medication to take place.

3.4 Applying Principle 3: The Right to make an Unwise Decision

An unwise decision is any decision made by the young person that you, or anyone else thinks is not the best decision for them.

The purpose of principle 3 in practice is to prevent you from:

  • Making assumptions about what may or may not be right for a young person; and
  • Applying your own values and beliefs (or the values and beliefs of others or society) to the young person’s situation.

It is important you recognise that every decision a young person makes will be influenced by their:

  • Attitudes;
  • Beliefs;
  • Values; and
  • Preferences.

It is not your place (or the place of anyone else) to judge whether or not:

  • A young person’s attitudes, values, beliefs or preferences are right or wrong; or
  • Whether the decision that a young person makes based on them is wise or unwise.

If a young person makes an unwise decision this must not in itself be taken as an indicator that they lack capacity to make the decision.

3.5 Coercion and Undue Influence

The young person may be subject to coercion or undue influence if:

  • They find it difficult to make a decision; but
  • They do not have an impairment of, or disturbance in the functioning of the mind or brain; or
  • That disturbance or impairment is not likely to be the reason they are unable to make the decision.

If this is the case a safeguarding concern may need to be raised on order to protect them from the effects of the coercive or controlling behaviour of others.

4. Assessing Mental Capacity

4.1 Deciding whether to Assess Mental Capacity

If any of the following indicators are present the young person may not be able to make their own decision:

  • Lacking a general understanding of the decision that needs to be made, and why it needs to be made;
  • Lacking a general understanding of the likely consequences of making, or not making the decision;
  • Being unable to understand, remember and use the information provided to them when making the decision; and
  • Being unable to, or unable to consistently communicate the decision.

There may also be cause for concern if a young person:

  • Repeatedly makes an unwise decision that puts them at serious risk of harm, abuse or exploitation; or
  • Makes a particular unwise decision that is obviously irrational or out of character.

A mental capacity assessment must be carried out when:

  • There are indicators that the young person may not be able to make the decision at the time that it needs to be made; and
  • There is evidence that the young person has (or may have) an impairment of, or disturbance in the functioning of the mind or brain; and
  • The reason that the young person may not be able to make the decision is related to (or may be related to) the impairment in, or disturbance of the functioning of the mind or brain.

4.2 The Purpose of a Mental Capacity Assessment

The purpose of the 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 the young person from making the decision (stage 2).

4.3 The Stages of a Mental Capacity Assessment

There are 2 clear stages to the mental capacity assessment. Any assessment should begin with stage 1 and only proceed to stage 2 if the first stage is met.

Each stage is set out as a question to be answered as follows:

  • Stage 1: Does the person have an impairment of, or disturbance in the functioning of the mind or brain?
  • Stage 2: Does the impairment or disturbance mean that the person is unable to make the specific decision when they need to?

The same 2 stage test applies for every assessment of mental capacity. However the nature of the information and practicable steps will vary depending on:

  • The young person’s needs;
  • The nature of the decision to be made; and
  • The urgency in which the decision needs to be made.
Need to Know

If a decision relates to emergency medical treatment a medical professional can decide that a young person lacks capacity without taking any steps to assess their ability to make the decision if:

  • The young person is not able to communicate decision at that time; and
  • Delays in treatment would likely lead to significant harm or loss of life occurring.

4.4 Stage 1: The Presence of an Impairment or Disturbance

Stage 1 is sometimes referred to as the ‘diagnostic’ test of capacity.

This purpose of this stage in practice is to:

  • Consider the evidence regarding the presence of an impairment of, or disturbance in the functioning of the mind or brain; and
  • Decide whether such an impairment or disturbance exists.

Sometimes there is clear evidence of the existence of an impairment or disturbance, for example there may be a medical diagnosis of a learning disability. At other times evidence may be less clear.

Even though the impairment or disturbance does not have to be diagnosed you must not make a judgement that it exists solely on the basis of:

  • The young person’s age;
  • The young person’s outward appearance; including
  • Any physical disability or sensory impairment; or
  • The young person’s behaviour (including making an unwise decision).

See Section 2.4, Impairments of, or Disturbances in the Functioning of the Mind or Brain for guidance, including examples of impairments and disturbances that may exist.

If stage 1 concludes that there is an impairment of, or disturbance in the functioning of the mind or brain you must move onto stage 2.

If stage 1 concludes that there is no impairment or disturbance you should:

  • Not apply stage 2; and
  • Deem the young person to have capacity to make the decision; and
  • Allow them to make their own decision; by
  • Providing support as practicable to enable them to do so.

The young person may be subject to coercion or undue influence if:

  • They find it difficult to make a decision; but
  • They do not have an impairment of, or disturbance in the functioning of the mind or brain; or
  • That disturbance or impairment is not likely to be the reason they are unable to make the decision.

If this is the case a safeguarding concern may need to be raised on order to protect them from the effects of the coercive or controlling behaviour of others.

4.5 Stage 2: The Functional Test of Capacity

The purpose of the functional test of capacity (stage 2) is to:

  • Determine whether or not the young person is unable to make their own decision; and
  • If they are not able to make their own decision, whether they are unable to do so as a result of the impairment or disturbance of their mind or brain.

The functional test (stage 2) should only be applied when:

  • There are indicators that the young person may not be able to make the decision at the time that it needs to be made; and
  • Stage 1 of the assessment has concluded that the young person has an impairment of, or disturbance in the functioning of the mind or brain; and
  • It is likely that the impairment or disturbance is the reason that the young person may be unable to make their own decision.

The functional test consists of 4 elements, each of which you must test the young person’s ability in. They are:

  • The ability to understand information about the decision (the ‘relevant’ information);
  • The ability to retain the information long enough to make the decision;
  • The ability to use, or ‘weigh up’ the information as part of the decision making process; and
  • The ability to communicate their decision through any means.

In order to make their own decision the young person must be able to demonstrate their ability in all of the areas of the functional test.

The following are all steps that you should take before you carry out the functional test of capacity:

  • Make sure that you understand the nature of the decision to be made;
  • Make sure you understand the range of options available;
  • Make sure you consider and prepare the information that may be relevant to the decision;
  • Establish whether there is a Deputy appointed by the Court of Protection and arrange for them to be involved;
  • If the young person is 18, establish whether there is a donee of a Lasting Power of Attorney and arrange for them to be involved;
  • Consider any need that you may have for additional support (based on your own skills and abilities);
  • Consider any support the young person may need during the assessment;
  • Read any information that is available to you that could indicate the practicable steps that could support the young person to make their own decision;
  • Establish how the young person is currently supported to make decisions and the kind of decisions they are able to make; and
  • Establish if any information has already been given to the young person, what this was and how it was received.

4.6 The Ability to Understand Information about the Decision

In order for a young person to make their own decision they must be able to demonstrate all of the following:

  • A general understanding of the decision to be made;
  • A general understanding about why the decision needs to be made;
  • A general understanding about the effects of deciding one way or another, or of making no decision at all.

It is important not to assess a young person's understanding until they have been:

  • Provided with all of the relevant information to the decision; and
  • All practicable steps have been taken to support them to understand it.

4.7 The Ability to Retain Information

In order to make their own decision the young person needs to be able to demonstrate that they are able to retain (remember) the relevant information long enough to be able to make a decision. There is no requirement for them to be able to retain the information longer than that.

It is important not to assess a young person’s ability to retain (remember) information until they have been:

  • Provided with all of the relevant information to the decision; and
  • All practicable steps have been taken to support them to understand and retain it.

4.8 The Ability to Use or Weigh up the Relevant Information

In order to make their own decision the young person must be able to demonstrate an ability to use and weigh up the relevant information provided to them in order to arrive at a decision.

Everybody uses information differently when making a decision and you must ensure that you do not make a judgement about a young person’s ability to weigh up based on the fact that they have not used the relevant information in the same way as you.

There may be cause for concern if a young person:

  • Repeatedly makes an unwise decision that puts them at serious risk of harm, abuse or exploitation; or
  • Makes a particular unwise decision that is obviously irrational or out of character.

4.9 The Ability to Communicate the Decision through any Means

In order to make their own decision the young person must be able to demonstrate an ability to communicate their decision through any means.

The Mental Capacity Act anticipates that very few people will be unable to communicate their decision through any means. The only examples the Code of Practice gives where it would be appropriate to conclude that the young person is unable to communicate their decision are:

  • When the young person is unconscious or in a coma; and
  • When the young person is conscious but has a rare condition, such as 'locked in' syndrome that means they cannot speak or move at all.

It is your responsibility to establish and take all practicable steps to:

  • Communicate with the young person;
  • Provide relevant information to the young person; and
  • Support the young person to communicate their decision.

4.10 Fluctuating Ability to make Decisions

Some young people will have an impairment of, or disturbance in the functioning of their mind or brain that leads them to have:

  • Periods where they are able to make their own decisions; and
  • Periods where they lack capacity to make decisions.

Some of the things that can lead to a fluctuating ability to make decisions include:

  • Periods of anxiety or distress;
  • Periods of delusion, mania or depression;
  • The effect of medication;
  • Acute illness or severe pain.

If an urgent decision is not required you should always consider delaying the assessment so that the young person can make the decision for themselves.

4.11 Deciding the Outcome of the Assessment

The outcome of the mental capacity assessment must be that either:

  • The young person has capacity to make the decision; or
  • The young person lacks capacity to make the decision.

However, mental capacity is complex and it can sometimes be difficult to categorically say that a young person is unable to make a decision. Often there may be:

  • Some evidence that suggests a young person is unable to make the decision; and
  • Some evidence that suggests they can.

If it is not clear whether or not a young person has capacity this determination must be made on the balance of probabilities. This 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 young person has (or lacks) capacity based on all of the available evidence.

The evidence that you have used to make the determination should be clearly recorded and when making a decision the following must be taken into account:

  • The views of the young person about their capacity to make the decision; and
  • The basis for that view; and
  • The views of others about the young person’s ability to make the decision; and
  • The basis for that view.

4.12 Next Steps when a Young Person is able to make their Own Decision

If you have determined that the young person is able to make their own decision you should:

  • Allow them to make their own decision; by
  • Providing support as is practicable to enable them to do so.

If any decision that the young person make is likely to put them at risk of harm (or put others at risk of harm) you must consider the need to take any action under:

  • The Mental Health Act 1983; or
  • Children’s safeguarding procedures; or
  • If the young person is 18, adult safeguarding procedures.

If you are concerned that a young person is making decisions (unwise or otherwise) as a result of coercion or undue influence a safeguarding concern may need to be raised in order to protect them from the effects of the coercive or controlling behaviour of others.

4.13 Next Steps when a Young Person lacks Capacity

If you have determined that the young person is not able to make their own decision, and that they ‘lack capacity’ to do so you should ask the question:

  • Is it likely that the young person will be able to make the decision in the future? and
  • If so, can the decision be delayed until such a time when they can do so? and
  • If so, you should consider delaying the assessment so that the young person can make the decision for themselves.

If the decision cannot be delayed you must establish whether there is either:

  • A Deputy appointed by the Court of Protection with the power to make the decision in their Best Interests; or
  • If the young person is 18 years or over, a donee of a Lasting Power of Attorney with the authority to make the decision in their Best Interests; and
  • If so, allow them to make the decision.
Need to Know

If the young person is 18 years or over and the decision relates to specific but non-urgent medical treatment the medical professional responsible must also establish whether the young person has prepared an Advance Decision to Refuse Treatment in relation to the treatment, and if so give full weight to this, and uphold the original decision made by the person unless:

  • It has been withdrawn by the young person; or
  • The young person has subsequently appointed a Donee of a Lasting Power of Attorney to make the decision (thus overruling the ADRT); or
  • The young person has not acted in a way that is consistent with the ADRT.

You should proceed to make a decision by applying the Best Interests principle, so long as the decision is not a decision that must be made by the Court.

If there is no other person or legal instrument authorised to make the decision, you should proceed to make a decision by applying the Best Interests principle, so long as the decision is not a decision that must be made by the Court.

4.14 Recording the Assessment

A formal record of the assessment and determination should be recorded as soon as possible after it has been carried out.

The record must demonstrate that the statutory principles of the Act have been applied and each element of the functional test assessed.

The record should contain all of the following:

  • The evidence that has been used to confirm the presence of an impairment or disturbance of the mind or brain;
  • The decision to be made;
  • The relevant information that has been provided to the young person;
  • The practicable steps that have been taken to support the young person to make their own decision;
  • The outcome of each element of the functional test of capacity;
  • The reason that the young person has been deemed to have, or to lack capacity to make the decision for themselves; and
  • Where the young person has been deemed to lack capacity, the consideration that has been given to delaying the decision.

4.15 Notifying Others

You should take steps to notify the following people of the outcome of the assessment:

  • The young person who lacks capacity;
  • Any representative of the person;
  • Any Donee of a Lasting Power of Attorney or Deputy;
  • Anyone that the young person has asked you to notify; and
  • Anyone else that you deem it relevant to notify, either with the young person’s consent or in their Best Interests if they lack capacity to consent.

4.16 Providing a Copy of the Assessment

There is no legal requirement to provide a copy of the formal record of the mental capacity assessment to anyone else. However, you should consider providing it to:

  • The young person who lacks capacity;
  • Anyone that the young person has asked you to provide a copy to;
  • The Court of Protection at their request; and
  • Any other person you deem it relevant to receive a copy, with the consent of the young person or in their Best Interests if they lack capacity to consent.

4.17 Reviewing the Decisions about Mental Capacity

A review of the young person’s mental capacity should be carried out whenever:

  • A young person assessed as being able to make their own decision starts to act in a way that may suggest they are no longer able to do so; or
  • A young person assessed as lacking capacity to make their own decision behaves in a way, or learns a new skill that indicates they may now be able to do so.

If a young person has been assessed as unable to make decisions about their everyday care or routine treatment this should be reviewed:

  • Whenever a Care Plan (or health plan) is reviewed; or
  • Whenever an Education, Health and Care Plan is reviewed;
  • During any other assessment or planning process, including safeguarding; and
  • By anyone supporting the young person each time that an act is carried out to implement a Best Interests decision.

4.18 Refusal of Assessment

If the young person whose capacity needs to be assessed does not provide their consent the assessment:

  • Cannot go ahead; unless
  • On the balance of probabilities, the young person has been found to lack capacity to refuse consent.

If the young person lacks capacity to refuse consent but you are still unable to make contact with them you should carry out the assessment based on the evidence available, and in consultation with others (having regard for confidentiality).

Depending on the situation, if a young person has refused the assessment you should consider the need to:

  • Assess the person under section 135 of the Mental Health Act; or
  • Raise a concern using relevant children’s or adult’s safeguarding procedures.

5. Making a Best Interests Decision

5.1 The Best Interest Principle

Best Interests is a statutory principle set out in section 4 of the Mental Capacity 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 to apply it when making decisions on behalf of a young person who lacks capacity.

5.2 The Best Interests Decision

A Best Interests decision is the name given to any decision that has been made by applying the Best Interest principle.

5.3 The Decision Maker

The Decision Maker is responsible for applying the Best Interests principle and making the Best Interest Decision.

Normally the person who has assessed capacity will act as the Decision Maker, unless:

  • They are not authorised to make the decision that needs to be made; or
  • There is a Deputy authorised to make the decision; or
  • If the young person is 18 or over, there is a Donee of a Lasting Power of Attorney authorised to make the decision; or
  • Another person may be better placed to make the decision; or
  • There may be a need for more than one Decision Maker.

The Decision Maker is responsible for:

  • Considering and deciding whether the young person is likely to regain capacity and, if so whether the decision to be made can be delayed;
  • Deciding which steps in the checklist it is relevant and practicable to take so as to apply the Best Interest principle (and then carrying them out);
  • Deciding any other steps may need to be taken based upon the specific circumstances and decision to be made (and carrying them out);
  • Deciding who to consult (and consulting with those persons);
  • Deciding how best to involve the young person who lacks capacity (and making appropriate arrangements to do so);
  • Deciding whether an IMCA should be appointed (and where appropriate,  appointing an IMCA);
  • Preparing the young person, and others for involvement;
  • Ensuring that all relevant information is available so as to explore the full range of options;
  • Managing any conflict or disagreement that may occur during the Best Interests process;
  • Weighing up all of the information gathered during the Best Interest process;
  • Making a Best Interest decision;
  • Ensuring the Best Interest decision is not discriminatory or based on assumptions;
  • Ensuring that the Best Interest decision is least restrictive;
  • Recording the Best Interest decision that has been made, and the reasons for it;
  • Deciding how to implement the Best Interest decision in the least restrictive way;
  • Identifying whether an application to the Court of Protection needs to be made (and following local processes to make the application).

5.4 When to make a Best Interests decision

A Best Interest decision should only be made when:

  • A young person, who is over the age of 16 has been assessed as unable to make the decision for themselves (through a mental capacity assessment); and
  • The decision to be made cannot wait; and
  • The decision to be made is a decision that the Decision Maker is authorised to make; and
  • There is no Deputy authorised to make the decision; or
  • If the young person is aged 18 or over, there is no Donee of a Lasting Power of Attorney authorised to make the decision.

5.5 Decisions that can be made

A range of decisions can be made without the need to approach the Court. These include:

  • Everyday decisions, such as what to wear, what to eat or what to buy from the shop; and
  • Major decisions, such as where to live and whether to undergo medical treatment.

There are some decisions that can never be made under the Mental Capacity Act. These are known as excluded decisions, and before proceeding you must be satisfied that the decision to be made is not an excluded decision.

5.6 Excluded Decisions

Excluded decisions fall into 3 primary categories as follows:

  • Decisions concerning family relationships;
  • Mental Health Act matters; and
  • Voting rights.

See Section 7, The Court of Protection for guidance about the excluded decisions that must always be made by the Court.

5.7 Representation

Representation must be provided if:

  • The young person requests it; or
  • The young person is unable to be involved in the decision that is to be made; or
  • The decision relates to providing, stopping or withholding serious medical treatment; or
  • The decision relates to accommodation of the young person by the NHS for more than 28 days; or
  • The decision relates to accommodation by the Local Authority for more than 8 weeks; or
  • If the young person is 18 or over, the decision relates to Deprivation of Liberty Safeguards.

The Mental Capacity Act recognises a range of people whom may be suitable to represent the young person during the Best Interest process. These include:

  • Family members;
  • Friends;
  • A Deputy appointed by the Court of Protection;
  • Where the young person is 18 or over, a Donee of a Lasting Power of Attorney;
  • General advocates;
  • Independent Mental Capacity Advocates (IMCA’s); and
  • Independent Mental Health Advocates (IMHA’s) already supporting a young person under the Mental Health Act 1983.

Wherever possible you should support the appointment of a family member or friend as the young person’s representative when:

  • The young person has asked it of you; or
  • The young person is in agreement with the representation; or
  • The young person is unable to agree to the appointment but there is evidence that it would be in their Best Interests; and
  • The family member or friend is willing to represent the young person; and
  • The family member or friend appears to have a genuine interest in the young person’s welfare; and
  • In the case of decisions about life sustaining treatment, the family member or friend is not motivated (or does not appear to be motivated) by the young person’s death.

A family member or friend is not a suitable representative if they do not have a genuine interest in the young person’s welfare. Indicators of this include:

  • Prioritisation of their own interests over that of the young person’s; or
  • An unwillingness to explore the full range of options.

However, without evidence concerns alone are not lawful reasons to deem anyone unsuitable to represent the young person, and the Mental Capacity Act Code of Practice requires you to take reasonable steps to work with family members regardless of any conflicting views they may have.

5.8 Appointing an Independent Mental Capacity Advocate (IMCA)

Under the Mental Capacity Act you must appoint an IMCA whenever:

  • The decision relates to providing, stopping or withholding serious medical treatment; or
  • The decision relates to accommodation of the young person by the NHS for more than 28 days; or
  • The decision relates to accommodation by the Local Authority for more than 8 weeks; or
  • If the young person is 18 or over, the decision relates to Deprivation of Liberty Safeguards; and
  • There is no Court appointed Deputy authorised to make the decision; and
  • If the young person is 18 or over, there is no Donee of a Lasting Power of Attorney authorised to make the decision; and
  • There is no suitable family member, friend or other person to represent the young person; or
  • A suitable family member or friend is unwilling or feels unable to represent the young person.

An IMCA may also be appointed when:

  • The young person has asked for advocacy support; and
  • Decisions need to be made as part of an assessment or planning process; or
  • To support a young person (from the age of 18) through the safeguarding process (regardless of whether there is already a suitable representative); or
  • To support decisions about taking part in research.

There are circumstances set out in the Mental Capacity Act when you should not appoint an IMCA. These are as follows:

  • Where there is a suitable family member or friend who is willing and able to represent the young person;
  • When there is a Deputy appointed by the Court who is authorised to make the decision; or
  • If the young person is aged 18 or over, when there is a Donee of a Lasting Power of Attorney authorised to make the decision.

If a Deputy or Donee able to make the decision exists it may still be appropriate to appoint an advocate, but this cannot be an IMCA.

5.9 Applying the Best Interests Principle

The Mental Capacity Act Code of Practice sets out as a checklist the steps that you must take (or at least consider taking) in all cases to ensure that the Best Interests principle is applied when making decisions.

Only decisions that have been made using the checklist can be defined as Best Interest decisions under the Mental Capacity Act.

The steps are as follows:

  • Encourage participation of the young person;
  • Identify all relevant circumstances;
  • Find out the young person’s views;
  • Avoid discrimination;
  • Assess whether the young person might regain capacity;
  • Consult others;
  • Avoid restricting the young person’s rights;
  • Take all of the above into account; and
  • In the case of life sustaining medical treatment, make no assumptions about the quality of the young person’s life and ensure that decisions are in no way motivated by a desire to bring about the young person’s death.

The steps that are taken, and the manner in which they are taken will vary depending on:

  • The specific circumstances and needs of the young person;
  • The decision that is to be made; and
  • The urgency of the decision to be made.

Where you decide not to take a particular step there should be clear recorded evidence to explain why it was not deemed appropriate or practicable to do so.

In all cases, wherever it is reasonable and practicable to do so steps should be taken to involve the young person who lacks capacity in the decision that is made.

5.10 Consulting and Involving the Young Person

The Code of Practice states that you must do whatever is possible to:

  • Encourage the young person to be involved in the decision that is to be made; and
  • Permit the young person to be involved in the decision that is to be made.

The nature of the young person’s involvement will depend on their ability to:

  • Communicate their views on any matters affecting the decision; and
  • Communicate what their preferred outcome may be.

The purpose of consulting and involving the young person is to understand, as far as is reasonably ascertainable:

  • What their views are on any matters affecting the decision;
  • What is important to them (the relevant factors); and
  • What their preferred outcome may be.
Need to Know
‘Reasonably ascertainable’ means the information that can be gathered in the time that is available. What is available in an emergency will be different to what is available in other situations.

You must clearly record:

  • The manner in which you have consulted or involved the young person in the decision;
  • The views, wishes, beliefs and values expressed by the young person;
  • Information about what is important to them (now and in the future); and
  • Their preferred outcome.

If you decide not to consult or involve the young person, or to limit their involvement you must:

  • Ensure that they are represented by a suitable person or an advocate; and
  • Provide clear written evidence of your reasoning.

5.11 Improving the Young Person’s Ability to Participate

If the young person is not readily able to be consulted or involved in the decision you are required to do whatever is reasonably possible to improve their ability to do so.

The following are just some of the things that you should consider doing to improve the young person’s ability to participate:

  • Use simple language and/or visual aids to support the young person to understand the options;
  • Seek their views at a time and location where they feel relaxed and at ease;
  • Break information down into easy-to-understand points;
  • Use specialist interpreters to communicate;
  • Ask carers or friends to communicate with the young person to establish their views, rather than doing it yourself;
  • Appoint an advocate to support and represent the young person;
  • Consider delaying the decision to allow the young person time to process the information provided to them, or to talk through the options with others;
  • Consider delaying the decision to allow the young person to develop their communication skills; and
  • Hold any Best Interest case conference at a time and place that best suits the young person and facilitates their involvement.

Many of the steps that should be taken to support a young person’s involvement during the Best Interests process are the same as those that should be taken if you were supporting them to make their own decision.

You should clearly record the steps that you have taken to support the young person to be consulted and involved in the decision.

5.12 Consulting Others

Wherever possible, in general you should always consult the following people:

  • Anyone who the young person has asked you to consult with;
  • Anyone previously named by the young person as someone to be consulted on either the decision in question or on similar issues;
  • Anyone engaged in caring for the young person (paid or unpaid);
  • Parents, close relatives, friends or others who take an interest in the young person’s welfare;
  • Any Deputy appointed by the Court of Protection; or
  • If the person is 18 or over, any donee of a Lasting Power of Attorney.

If an IMCA or other advocate has been appointed you must consult with them and have regard for their views before making a decision about what is in the young person’s Best Interests.

If there is a particular person that the incapacitated young person has asked you not to consult with then you should not consult with that person.

Need to Know
In the case of decisions about life sustaining treatment the medical professional responsible for making a decision should not consult with any person who is motivated by (or appears to be motivated by) the death of the incapacitated young person.

For the purpose of applying the Best Interest principle, the aim of consulting is very specific. It is purely to:

  • Gather any information that the person being consulted may have about the past and present wishes, feelings, beliefs and values of the young person who lacks capacity; and
  • Ascertain any views that the person being consulted has about what may be in the young person’s best interests (and the reason for those views).

You must take steps during consultation with others to ensure that:

  • The privacy of the young person is protected; and
  • Information that is not relevant to the decision to be made is not shared; and
  • Information that the incapacitated young person has requested remain private is not shared.

You must clearly record:

  • The manner in which you have consulted others;
  • The views of the person consulted about what may be in the Best Interests of the young person; and
  • Any information they have about the views, wishes, beliefs or values of the young person.

If you decide not to consult, or not to consult with particular people there should be clear recorded evidence to explain why it was not deemed appropriate or practicable to do so.

5.13 Available Options

It is important that you:

  • Understand the full range of options available in the situation, even if you do not necessarily think them all viable;
  • Understand and provide relevant information about each of the options to support the weighing up process; and
  • Are open to exploring options identified by others, or as they arise through the Best Interests process.

When deciding which options are available options it is important to only provide those that:

  • Are actually available to the young person;
  • Reflect the options that would be available to a young person who did not lack capacity in a similar situation; and
  • Are within the resources of the young person (if they are 18 or over), Local Authority or Health to provide.

It is also important that you do not restrict the number of available options by exerting an overly adverse approach to risk.

5.14 Identifying risks and Benefits of Available Options

When all available options have been established, you must explore each in turn, setting out:

  • The risks to the young person;
  • The benefits to the young person;
  • The likely impact of the risk or benefit on the young person.

When identifying risks and benefits, and the likely impact of these on the young person you must:

  • Base this on available evidence; and
  • Not make a judgement based solely on perceived risk.

When you are identifying the likely impact of a risk or benefit on the young person you should take care to consider both:

  • Tangible impacts (for example the impact on health or finances); and
  • Less tangible impacts (for example, the possible impact on relationships).

You should also consider the impact on the young person’s human rights, specifically the impact on their liberty and whether an available option is likely to deprive them of this.

If you identify risk (or likely risk) you must consider what can or cannot be done to reduce the risk. If a risk can be reduced then the gravity (or impact) of the risk on the young person is also likely to be reduced.

5.15 The Best Interests Case Conference

The Best Interests case conference (also known as the Best Interests meeting) is a way of applying the Best Interests principle in a co-ordinated and structured way. It is a formal meeting (or series of meetings) that involves:

  • The Decision Maker (whose role it is to co-ordinate and chair the meeting);
  • All persons being consulted; or
  • Some of the persons being consulted (with the views of those not present being shared by the Decision Maker); and
  • The young person lacking capacity; or
  • The representative of the young person lacking capacity. 

The purpose of the Best Interests case conference is to:

  • Hear the views of everyone present;
  • Share the views of those persons consulted but not present;
  • Provide relevant information about the available options;
  • Share ideas about possible options;
  • Weigh up the benefits and risks of all the available options;
  • Provide opportunities to challenge and question;
  • Support the Decision Maker to make a decision;
  • Support those person’s present to understand how the decision has been made; and
  • When the decision is made, agree how best to implement it in the least restrictive way.

There is no requirement under the Mental Capacity Act to arrange a Best Interests case conference during any Best Interests decision making process and whether or not you arrange a Best Interests case conference will depend on a range of factors including:

  • The specific circumstances and needs of the young person;
  • The decision that is to be made; and
  • The urgency of the decision to be made.

Arranging a Best Interests case conference can be particularly helpful when:

  • The decision is complex or likely to have serious consequences for the young person; and
  • There is time to arrange a meeting; and
  • A significant number of people with a range of views are consulted; or
  • There is likely to be some conflict or challenge about what is in the young person’s Best Interests.

5.16 Making a Best Interests decision

All Best Interest decisions must have regard for:

  • The relevant circumstances;
  • The wishes and feelings of the young person (past and present);
  • The views of others consulted; and
  • The identified risks and benefits of available options.

5.17 Relevant Circumstances

Before making a decision you must identify and have regard for the specific circumstances and factors relevant to the decision:

  • That you are aware; or
  • That you believe are relevant; and
  • That the young person wishes to be taken into account; or
  • That it is reasonable to believe the young person would want to be taken into account.

A Best Interest decision can only be made:

  • After having regard to all of the ‘relevant circumstances’; and
  • You must not disregard any relevant circumstances that the young person has asked you to consider.

No two young people or decisions will have the same relevant circumstances, and the following are merely some examples of the kind of things that could be deemed a relevant circumstance:

  • Any critical or specific wishes of the young person;
  • Any written statement of wishes that exists;
  • The past beliefs and values of the young person;
  • The financial circumstances of the young person;
  • The young person’s relationships;
  • The young person’s care or treatment needs;
  • The young person’s future goals and plans;
  • The young person’s current living arrangements.

5.18 Understanding the Past and Present Wishes of the Young Person

Wishes are the things that a young person wants to happen (or not happen) in any given situation.

Past wishes are the wishes that were expressed by the young person before the time that they lost capacity to make the decision. You should specifically seek to identify the existence of any written statement, and you must give weight to any such document.

Present wishes are the wishes that are being expressed by the young person at the time that the decision needs to be made. They include:

  • What their views are on any matters affecting the decision;
  • What is important to them (the relevant factors); and
  • What their preferred outcome may be.

5.19 Understanding the Past and Present Feelings of the Young Person

Feelings are the:

  • Beliefs and values upon which decisions are made; and/or
  • Emotional responses to the range of options available; and/or
  • Emotional responses following a particular decision.

Past feelings are the values and beliefs that influenced the young person’s decision making before they lacked capacity.

Present feelings are:

  • The current beliefs and values of the young person;
  • Other things that are important to the young person now;
  • How they feel about the available options; and
  • What the young person’s preferred option is.

5.20 Giving Weight to Wishes and Feelings of the Young Person

You must decide how much weight to give to the young person’s past and present wishes and feelings but wherever possible:

  • The decision that you make should reflect the decision that the young person would be likely to make themselves; and as such
  • Wherever possible you should give weight to the young person’s own wishes and feelings.

Generally speaking, you should give more weight to the young person’s wishes and feelings when:

  • The young person has written their past wishes and feelings down; and/or
  • The young person is closer to having capacity than lacking capacity; and/or
  • The young person’s wishes and feelings are logical and show some understanding; and/or
  • The preferred outcome is possible; and/or
  • The young person feels very strongly about their views; and/or
  • The young person has expressed a consistent view; and/or
  • The young person has not provided differing views to others; and/or
  • The young person’s behaviour or actions are consistent with the view; and/or
  • The young person’s past wishes and feelings and current wishes and feelings remain unchanged; and/or
  • Where the young person has not communicated their own wishes and feelings, evidence has been provided to support the views of others.

You must record:

  • How you have given weight to the young person’s past and present wishes and feelings;
  • The factors that you considered when deciding the weight to give;
  • If you did not give weight to the young person’s wishes and feelings (or limited the weight you gave), your rationale for this decision.

5.21 Considering the Views of Others

In determining what weight to give the views of others you should consider whether:

  • They knew the young person before they lacked capacity;
  • The nature of the relationship was such that the person is likely to have been privy to the information;
  • There is any evidence to support what is being said;
  • The views of others corroborates or refutes what is being said;
  • The person appears to be motivated by a genuine interest in the young person’s welfare; or
  • They are an IMCA (in which case you must give weight to their views).

It is important that you:

  • Consider each view on its own merits;
  • Record why you have given weight to particular views; and
  • Record why you have not given weight to particular views.

5.22 Considering the risks and Benefits of Available Options

You need to consider:

  • Whether the information about risk/benefit is evidence based; and
  • The likely impact of the risk/benefit for the young person; and
  • The likely impact of the risk/benefit for others; and
  • The likely impact of any risk reduction strategies that have been proposed.

The likely impact should never be generalised, and should be considered in the specific context of:

  • The relevant circumstances (see above);
  • The young person’s wishes and preferences;
  • What is important to them;
  • Their beliefs and values; as well as
  • Other factors perceived to be relevant by others.

You must consider what the likely impact of any proposed risk reduction strategies would be for:

  • The relevant circumstances (see above);
  • The level of each risk identified;
  • The level of each benefit identified;
  • The young person’s wishes, values, beliefs and dignity;
  • The young person’s human rights (particularly their privacy and liberty).

You should also identify any other risk reduction strategies that may be helpful in:

  • Reducing the level of risk;
  • Increasing benefits to the young person;
  • Minimising restriction of the young person’s human rights; or
  • Making an option more in line with the young person’s wishes, values and beliefs.

5.23 Identifying the Least Restrictive Option

In order to identify whether an available option is the least restrictive of the young person’s rights you must:

  • Be aware of any likely impact on Human Rights; and
  • Be satisfied that the option is the least restrictive way that the required outcome can be achieved.

You will need to consciously ask the following questions of yourself to be satisfied that you are acting in the least restrictive way:

  • What will be the likely impact on Human Rights be of the option?
  • Have I explored all of the different ways of achieving what needs to be achieved?
  • Is there a different option that is less restrictive?
Need to Know
It is not lawful for you to make a decision that restricts a young person’s contact with their family, or with other persons they have a meaningful relationship with. These decisions must be made by the Court of Protection.

5.24 Weighing everything up and making a Final Decision

‘Weighing up’ is the term given to the process of:

  • Evaluating all of the relevant information; in order to
  • Make an objective decision about what is in the young person’s Best Interests; based on
  • The reasonable belief that it is so.

All weighing up should be done with regard for the relevant circumstances of the young person and their situation and any decision that you make must not be based solely upon:

  • The person’s age;
  • The person’s appearance;
  • The person’s behaviour; or
  • The presence of a particular physical or medical condition.

Neither should a decision be based upon:

  • Your own values or beliefs; or
  • The values or beliefs of others consulted.

5.25 Reasonable Belief

Having a reasonable belief that a decision is in the young person’s Best Interests means that:

  • Having applied the statutory principles of the Mental Capacity Act; and
  • Having applied the relevant steps of the Best Interests checklist; and
  • Having considered and made best use of all the reasonably ascertainable information; you
  • Believe from an objective position that the decision is in the young person’s Best Interests.

If you have followed due process and the decision that you make is made in the reasonable belief that it is the right one, the Mental Capacity Act provides you with protection should any decision that you make be subject to legal challenge.

5.26 Making a Record of the Decision

A formal record of the decision should be recorded as soon as possible after it has been made.

To meet the requirements of the Code of Practice this record must include:

  • How the decision was reached;
  • What the reasons for reaching the decision were;
  • Who was consulted to help work out Best Interests; and
  • What particular factors were taken into account.

The depth of information recorded should reflect the seriousness of the decision that has been made.

You should take steps to notify the following people of the decision that has been made:

  • The young person who lacks capacity;
  • Any representative of the young person, including any IMCA;
  • Any Deputy;
  • Where the young person is 18 or over, any Donee of a Lasting Power of Attorney;
  • Anyone that the young person has asked you to notify; and
  • Anyone else that you deem it relevant to notify, either with the young person’s consent or in their Best Interests if they lack capacity to consent.

There is no legal requirement to provide a copy of the formal record of the Best Interests decision to anyone else. However, you should consider providing it to:

  • Any joint Decision Maker;
  • The young person who lacks capacity;
  • Any IMCA that is involved;
  • The Court of Protection at their request; and
  • Any other person you deem it relevant to receive a copy, with the consent of the young person or in their Best Interests if they lack capacity to consent.

5.27 Short Term Decisions

You should consider making a short term Best Interests decision when there is a possibility that the young person:

  • Will regain mental capacity to make the decision for themselves; or
  • Can be supported to be more involved in the decision.

Examples of situations when capacity can be regained include:

  • When the cause can be treated, either by medication or other therapy;
  • When capacity is likely to increase in time (for example when it has been caused by a factor such as drug or alcohol misuse, or sudden shock);
  • When the young person may learn a new skill or be subject to a new experience which will increase their understanding and ability to make the decision;
  • If the young person has fluctuating capacity, and it may be possible to make the decision at a time when they have capacity;
  • If they are receiving support to improve communication, or to learn another method of communication.

Short term decisions should, wherever possible:

  • Be reversible; and
  • Not limit the number of available options for the long term decision.

5.28 Urgent Decisions

Put simply an urgent decision is any decision that cannot be delayed because doing so would pose a significant risk to the young person’s:

  • Life;
  • Physical or mental health;
  • Safety (including risk of abuse);
  • Human Rights and freedoms.

If a decision is urgent there may not be time to:

  • Carry out all steps of the Best Interests checklist; or
  • Examine all possible factors; but
  • The Best Interests principle still applies.

Where reasonably ascertainable you must specifically carry out the following steps before making a decision:

  • Identify the relevant circumstances; and
  • Ascertain the past and present wishes and feelings of the young person; and
  • Identify and explore all available options; and
  • Weigh everything up to make an objective decision.

Whenever you decide not to take a particular step, your reasons for not doing so must be clearly recorded.

5.29 Decisions that Deprive a Young Person of their Liberty

It is possible for you to make a decision that is likely to deprive a young person of their liberty but:

  • You must not do so unless you are satisfied that this is the least restrictive option; and
  • You should not implement the decision; until
  • The proposed deprivation has been authorised through the Deprivation of Liberty Safeguards (if the young person is 18 and is detained in a care home or hospital); or
  • The proposed deprivation has been authorised by the Court of Protection.

6. Implementing and Reviewing a Best Interests Decision

Need to Know

If the Best Interests decision has been challenged you should not implement it until:

  • The challenge is resolved satisfactorily by all parties; or
  • The matter has been decided by the Court of Protection.

6.1 Deciding how to Implement the Decision

When planning the best way to implement the Best Interests decision you must have regard for the Best Interest principle, in the same way as you had regard for it when making the original decision.

This includes all of the following steps of the Best Interests checklist:

  • Encourage participation of the young person;
  • Identify all relevant circumstances;
  • Find out the young person’s views;
  • Avoid discrimination;
  • Assess whether the young person might regain capacity;
  • Consult others;
  • Avoid restricting the young person’s rights;
  • Take all of the above into account; and
  • In the case of life sustaining medical treatment, make no assumptions about the quality of the young person’s life and ensure that decisions are in no way motivated by a desire to bring about the young person’s death.

6.2 The Least Restrictive Option

Whenever you make a decision, or implement a decision under the Mental Capacity Act you are required to achieve the required outcome by acting in a way that is least restrictive of the young person’s rights and freedoms.

In order to identify whether an act of implementation is the least restrictive option you must:

  • Be aware of any likely impact on Human Rights; and
  • Be satisfied that the act is the least restrictive way that the required outcome can be achieved.

You will need to consciously ask the following questions of yourself to be satisfied that you are acting in the least restrictive way:

  • If the decision is implemented this way, what will be the likely impact on Human Rights?
  • Have I explored all of the different ways of achieving what needs to be achieved?
  • Is there a different way of doing things that is less restrictive?

6.3 Decisions that Restrict the Right to a Private and Family Life

It is not lawful for anyone other than the Court to make a decision that restricts a young person’s contact with their family, or with other persons they have a meaningful relationship with.

You must therefore only act to implement a decision to restrict a young person’s Article 8 rights if the Court has made such a determination and advised you to do so.

6.4 Reviewing a Best Interests decision

What is in a young person’s Best Interests may change over time. This means that a decision that was made and implemented at the time that it was originally needed may not always remain in their Best Interests.

For example there may be changes in:

  • The relevant circumstances;
  • The young person’s present wishes and feelings; or
  • The risks and benefits of the preferred option.

It is important to make sure that:

  • Any decision remains in the young person’s Best Interests for as long as it is being implemented: and
  • The way that the decision is being implemented remains the least restrictive way of achieving the desired outcome.

A review of a Best Interests decision should therefore take place:

  • As part of any scheduled review activity; and
  • Whenever there is evidence that the decision may no longer be in the young person’s Best Interests.

Whenever a review is carried out you should clearly record all of the following:

  • The Best Interest decision that has been reviewed; or
  • The acts of implementation that have been reviewed; and
  • The reason for the review (e.g. a general review or because there has been a change); and
  • The outcome of the review; and
  • The rationale for the outcome.

7. The Court of Protection

7.1 The Role of the Court of Protection

The Court of Protection is a court that was established through Part 2 of the Mental Capacity Act 2005.

The Court has jurisdiction to decide all matters relating to the Mental Capacity Act and to make decisions about what is in the Best Interests of a young person (from the age of 16) who lacks capacity with regard to their:

  • Personal welfare; and/or
  • Property and Affairs.

7.2 Situations outside the remit of the Court of Protection

The following decisions are all ‘excluded decisions’. This means that they cannot be made under the Mental Capacity Act and, as such must be made under other relevant legislation (for example adoption legislation).

Situation
Consent to treatment under the Human Fertilisation and Embryology Act 1990 or the Human Fertilisation and Embryology Act 2008.
Consent for a child of an incapacitated parent to be placed for adoption by an adoption agency.
Consent to the making of an adoption order.
The discharging or parental responsibility for a child’s welfare.
Cases where there is a dispute about whether a particular medical treatment will be in a person’s best interests.
Consenting to marriage or a civil partnership.
Consenting to sexual relations.
Consenting to a decree of divorce or dissolution of a civil partnership, on the basis of 2 years’ separation.
Decisions about voting in a public election or referendum.

If a young person is found to lack capacity to make any of these decisions;

  1. Action should be taken as appropriate to safeguard the young person from any risk of harm or abuse; and
  2. Legal advice should be sought as required to determine the appropriate course of action.

7.3 Situations when legal advice should always be sought

Following recent case law and the withdrawal of Practice Direction 9E on serious medical treatment there is no longer a requirement to take the following matters to the Court of Protections without exception;

  1. The proposed withholding or withdrawal of artificial nutrition and hydration from a patient in a permanent vegetative state;
  2. Cases where it is proposed that a young person who lacks capacity to consent should donate an organ or bone marrow to another person; and
  3. The proposed non-therapeutic sterilisation of a young person who lacks capacity to consent (for example, for contraceptive purposes).
However, cases must still be considered on a case by case basis and it is advisable to always seek legal advice when making a decision.

7.4 Situations when an Application should normally be made

The following are all situations when an application to the Court should be made, unless it is possible to:

  • Take action to resolve disagreement; or
  • Review what may be in the young person’s Best Interests; or
  • Employ less restrictive methods of implementing a decision.
Situation

A person is being Deprived of their Liberty in an environment where the Deprivation of Liberty Safeguards do not apply.

There is doubt about whether withholding or withdrawing life sustaining treatment is in the patient’s best interests.
There is disagreement regarding a serious decision, which cannot be settled in any other way; this includes where a person should live and which medical treatment they should receive.
It is unclear whether proposed serious and/or invasive medical treatment is likely to be in the person’s best interests.
There is genuine doubt or disagreement about the existence, validity or applicability of an advance decision to refuse treatment.
A family carer or solicitor asks for personal information about someone who lacks capacity to consent to be revealed.
Stopping or limiting contact with a named individual because of risk of harm or abuse to a person lacking capacity to decide on the contact or consent to it.
Stopping or limiting contact with a named person where there is a Deprivation of Liberty Safeguard (DoLS) in place already.

Authorisation is required so that someone can sign a legally binding contract on the incapacitated person’s behalf e.g. a tenancy agreement

The person has finances they are no longer able to manage and the banking institution requires a court order to authorise the release of monies to another person.

7.5 Other Situations when an Application can be made

Unless a decision is outlined in the guidance above, it is normally a matter that should be decided without the involvement of the Court.  However, decisions about these matters can still be referred to the Court of Protection if a decision cannot be made about:

  • The young person’s mental capacity;
  • What may be in the young person’s Best Interests; or
  • The decision is particularly complex; or
  • The decision that is made is contested by a member of the young person’s family and a resolution cannot be reached.

7.6 Existing Court of Protection Proceedings

If there are already existing proceedings relating to the young person in the Court of Protection it may be more appropriate to:

  • Request that the new matters to be heard are added to the existing proceedings; rather than
  • Making a new application.

7.7 If the Young Person is Aged 16 or 17

To prevent the need for the involvement of multiple Courts, the Mental Capacity Act gives permission for a family Court that is already involved in family proceedings to:

  • Make decisions regarding mental capacity; or
  • Transfer cases about mental capacity to the Court of Protection.

If the young person who lacks capacity (or may lack capacity) is 16 or 17 years of age you must therefore establish whether:

  • There are on-going family proceedings in a family Court; or
  • There is an existing Court Order made by a family Court.

You should only proceed to make the application to the Court of Protection if:

  • The family Court declines to hear the case; and
  • The family Court does itself not transfer the case to the Court of Protection.

7.8 The Court of Protection Rules 2017

The Court of Protection (Amendment) Rules 2017 set out the statutory requirements of:

  • Applicants;
  • The Court; and
  • Others involved in proceedings.

8. NICE Quality Standard: Decision-Making and Mental Capacity

NICE Quality Standard: Decision-Making and Mental Capacity, is a Quality Standard published by the National Institute for Health and Care Excellence (NICE) covering decision making in people aged 16 and over, using health and social care services who may lack capacity to make their own decisions (now or in the future). It aims to support implementation of the aims and principles of the Mental Capacity Act 2005 and relevant Codes of Practice. It is not a substitute for these.

The Quality Standard is based around four 'Quality Statements':

  • Statement 1 - People aged 16 and over who may lack capacity to make decisions are supported with decision making in a way that reflects their individual circumstances and meets their particular needs;
  • Statement 2 - People aged 16 and over at risk of losing capacity to make decisions, and those with fluctuating capacity, are given the opportunity to discuss advance care planning at each health and social care review;
  • Statement 3 - People aged 16 and over who are assessed as lacking capacity to make a particular decision at the time that decision needs to be made, have a clear record of the reasons why they lack capacity and the practicable steps taken to support them;
  • Statement 4 - People aged 16 and over who lack capacity to make a particular decision at the time that decision needs to be made have their wishes, feelings, values and beliefs accounted for in best interests decisions.

Against each quality statement are a set of Quality Measures which are designed to enable measurement of whether the Statements are being met, as well as an indication of what the Statement means for different audiences, including the relevant individuals themselves.

Trix procedures

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