Keywords

Applicant

This is the term used to describe the person or organisation making an application to the Court of Protection. In most Local Authority applications this will be the Director of Adult Social Services (DASS).

Balance of probability

The balance of probabilities is the legal threshold by which a person's capacity must be decided when this is not clear.

Making a decision on the balance of probabilities means deciding whether it is more likely or not that a person has (or lacks) capacity based on all of the available evidence.

Best Interests Case Conference

A meeting chaired and co-ordinated by the Decision Maker, to apply the Best Interests principle and make a Best Interests decision.

Best Interests Checklist

The steps that must be taken by the Decision Maker in order to apply the Best Interests principle when making a Best Interest decision. They are:

1. Encourage participation of the person;
2. Identify all relevant circumstances;
3. Avoid discrimination;
4. Assess whether the person might regain capacity;
5. Consult others;
6. Avoid restricting the person's rights;
7. Weigh up all factors;
8. Consider additional steps it may be relevant to take.

In cases of life sustaining treatment, the checklist also requires the Decision Maker to ensure that those persons consulted or involved in the decision are in no way motivated to bring about the person's death.

Principle four, of the five principles set out in the Mental Capacity Act 2005, states:

“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”

The principle covers all aspects of financial, personal welfare and healthcare decision-making and actions.

A decision made after applying the Best Interests principle.

The decision making process must;

• Consider whether the person will regain capacity?
• Involve the person;
• Consult all relevant people;
• Consider all the information;
• Not make any assumptions;
• Consider past, present and future wishes; and
• Consider the very least restrictive option.

Court of Protection

The specialist Court for all issues relating to people (from the age of 16) who lack capacity to make specific decisions.

Decision Maker

The person who makes a Best Interests decision after applying the Best Interests principle.

Often the Decision Maker will be a care worker or a family member, but for decisions relating to medical treatment this is likely to be a medical professional and for decisions relating to e.g. housing this is likely to be the Local Authority.

Deputy

A person appointed by the Court of Protection to make a decision (or a range of decisions) on behalf of a person who lacks capacity.

Diagnostic Test of Capacity

Stage 2 of a mental capacity assessment, the diagnostic test determines whether the reason that a person is unable to meet the functional text (stage 1) is because of an impairment of, or a disturbance in the functioning of the mind or brain.

If the outcome of Stage 2 is that no impairment or disturbance exists the person cannot be deemed to lack capacity. However, a safeguarding response may still be required if their decision-making places them at risk of abuse, neglect or harm.

Excluded Decisions

These are decisions that cannot be made using the Mental Capacity Act 2005. Decisions should instead be made using other relevant legislation (for example adoption legislation).

Excluded decisions include:

1. Consent to marriage,
2. Consent to sexual relations; and
3. Consent to adoption.

Functional Test of Capacity

Stage 1 of the mental capacity assessment, the functional test determines a person's ability to;

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

If a person is unable to do one or more of these things, stage 2 must be completed to determine if they lack capacity to make the decision.

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

An impairment or disturbance that is permanent, temporary, diagnosed or undiagnosed.

The purpose of the mental capacity assessment is to determine whether the impairment or disturbance prevents the person from making their own decision.

Independent Mental Capacity Advocate (IMCA)

Established by the Mental Capacity Act (MCA) 2005, IMCAs provide an advocacy service to people who lack capacity to make a specific decision.

The Mental Capacity Act states that a person must have suitable representation in the following situations, and that this must be an IMCA where a family member or other appropriate representative is not identified:

• Change of Accommodation;
• Serious Medical Treatment; and
• Applications under Deprivation of Liberty Safeguards.

Lasting Power of Attorney (LPA)

A lasting power of attorney (LPA) is a legal document that lets an adult (the 'donor') appoint one or more people (known as 'attorneys') to help them make decisions or to make decisions on their behalf.

This gives the adult more control over what happens to them if, for example, they have an accident or an illness and can't make decisions at the time they need to be made.

The adult must be 18 or over and have mental capacity when they make their LPA.

Least Restrictive

Whenever a decision is made or implemented on behalf of a person who lacks capacity this must be done in the least restrictive way necessary to achieve the outcome that is required.

For an option to be least restrictive it must:

1. Impose the least restriction on the person's Human Rights and freedoms; particularly
2. Their article 5 rights (the right to liberty); and
3. Their article 8 rights (the right to private and family life).

Mental Capacity

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

The Mental Capacity Act says that a person is able to make their own decision if they can do all of the following four things:

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

Mental Capacity Assessment

The Mental Capacity Assessment is the test to determine whether a person aged 16 or over is able to make a specific decision at a particular time.

The assessment consists of a two-stage functional test.

Stage 1 – Is the person unable to make a particular decision (the functional test)?

Stage 2 – Is the inability to make a decision caused by an impairment of, or disturbance in the functioning of, a person's mind or brain (the diagnostic test)?

Practicable steps

These are the steps that it is 'possible and appropriate' to take in order to support a person to make their own decision.

Steps could include:

1. Making sure all relevant information is provided;
2. Providing accessible information;
3. Delaying the decision;
4. Providing support to the person (e.g. an advocate).

The steps that are practicable will vary depending on the needs of the person and the urgency of the presenting situation but a decision about capacity cannot be made until all practicable steps have been taken.

Principles of the Act

There are 5 statutory principles of the Mental Capacity Act that apply at all times:

1. A person must be presumed to have capacity;
2. A person cannot be found to lack capacity unless all practicable steps have been taken to support them to make a decision;
3. The right to make an unwise decision;
4. An act done or decision made on behalf of a person who lacks capacity must be done , or made, in their best interests; and
5. Any act done, or decision made must be the least restrictive of the person's rights and freedom of action.

Relevant circumstances

When making a decision in a person's Best Interests the Decision Maker must identify all relevant circumstances.

Relevant circumstances are the things that the person who lacks capacity would take into account (or be likely to take into account) if they were making the decision for themselves.

Relevant Information

Information relevant to the decision that needs to be made.

Relevant information should be sufficient to enable a person to:

1. Understand what the decision is and why it needs to be made;
2. Understand the range of choices available to them;
3. Understand the likely consequence of making or not making a decision.

A decision about capacity cannot be made until all relevant information has been provided, and all practicable steps have been taken to support the person to understand it and make their own decision.

Unwise Decision

An unwise decision is any decision made by the person that others think is not the best decision for them.

Principle 3 of the Mental Capacity Act sets out that making an unwise decision is not an indicator that a person lacks capacity, and the person assessing capacity must have regard for the:

1. Attitudes;
2. Beliefs;
3. Values; and
4. Preferences of the person.