Yesterday we spoke about the first principle of the Mental Capacity Act being the presumption of capacity. Today we are going to look at the second principle.
The Act says that
"A person is not to be treated as unable to make a decision unless all practicable steps to help them to do so have been taken without success"
but what does that actually mean?
The Mental Capacity Act is an empowering Act. It provides support to people who have capacity issues by setting out steps that must be taken to ensure they are simply not written off and ignored. This principle aims to stop people from being automatically labelled as lacking capacity to make decisions by providing something practical that must be done to obtain evidence of lack of capacity.
It is important to start with making sure that the individual who needs to make a decision has all the information they need. None of us can make a decision if we are only given half the facts. It is also necessary to make sure that the individual understands the choice involved in the decision, again we cannot make an informed decision if we are not provided with options and alternatives. We all need to know the consequences of decisions that we make.
Consideration must be given to the timing of the decision. Is it urgent and cannot wait or can it wait until the individual is in a better place to make the decision for themselves. Is there a health issue impacting on decision making or a better time of day when understanding is better and clearer? Does the individual feel more at home in a particular location and is there anyone that could help them to express their view? Think about the circumstances around the person to maximise their chance of making a decision for themselves.
The support that a person will need will vary, after all we are all different. For some this may mean communicating in a different way ie non verbal communication or providing information in a more accessible manner ie drawings, photographs. It may mean providing treatment for a health complication that is preventing the individual from making the decision there and then or it may take some time as it is necessary to teach someone a new skill to allow them to make decisions ie teaching the use of a speech board or computer.
Doing everything practicable does not simply mean asking the question that needs to be answered. It really does mean everything! This may take time and effort but it is so important that a person feels in control of making their own decisions.
If, after you have done everything you can, the individual can not make the decision that is required you can determine they are unable to make a decision for themselves. It is not then as straightforward as you making the decision for them.
In law, no-one has a right to make decisions for others unless they have appointed someone to do so in writing. This is why it is so important to make a lasting power of attorney to ensure someone is there to make a decision when you cannot. The property and affairs lasting power will allow financial decisions to be made and the health and welfare power will allow health and welfare decisions to be made if you cannot make them yourself. If a power of attorney is not in place then you can appoint a Court of Protection deputy to make decisions.
In the event that no-one has this authority a best interest meeting is necessary for the decision making process to continue. This could mean that a simple decision is made with the best interests of the individual at heart ie they are dehydrated so need a drink, or it could be something much more formal. If it is a complex decision then it may be necessary for those involved in the individuals care to meet to discuss what is to happen. This could be medical professionals, social care managers, lawyers and family members. A best interest meeting could also result in a decision that the individual would have been unhappy with.
Do you want to end up with strangers making critical decisions about you or would you prefer to give that power to someone you love and trust?