4.3 Outline legal provisions for individuals who are unable to make decisions for themselves due to mental health problems

This guide will help you answer 4.3 Outline legal provisions for individuals who are unable to make decisions for themselves due to mental health problems.

Some individuals with mental health problems may not be able to make certain decisions about their care, finances, or daily living. In the UK, there are laws in place to protect these individuals and provide guidance for support workers. These laws aim to balance protecting individuals with respecting their rights and freedoms.

The Mental Capacity Act 2005

The Mental Capacity Act 2005 (MCA) is the main piece of legislation for supporting people who cannot make decisions for themselves. It applies to England and Wales and covers anyone aged 16 and above.

Key Principles of the Mental Capacity Act

The MCA is based on five key principles:

1. Presume capacity – Always assume someone can make their own decisions unless it is proven otherwise.
2. Provide support – Take all possible steps to help individuals make decisions before assuming they cannot.
3. Right to make unwise decisions – A person’s ability to make unwise or risky decisions does not mean they lack the capacity.
4. Act in the person’s best interests – If someone cannot decide, anyone acting on their behalf must act in their best interests.
5. Choose the least restrictive option – Decisions made should restrict the person as little as possible while keeping them safe.

Assessing Mental Capacity

Before deciding that a person lacks capacity, there must be an assessment. This assessment usually involves two stages:

1. Is there an impairment?
   Check if the person has a condition that affects the way their brain or mind works. For example, this could be dementia, a brain injury, or a mental illness such as schizophrenia.
2. Is the person unable to decide?
   A person is unable to make a decision if they cannot:

• Understand the information relevant to the decision
• Retain the information
• Use or weigh up the information
• Communicate their decision.

Both stages must be met before deciding that someone lacks capacity. The assessment is decision-specific, meaning a person might lack capacity for one decision but not for others.

Best Interest Decisions

When a person lacks capacity, decisions made on their behalf must be in their best interests. The decision-maker should consider:

• The person’s past and present wishes, feelings, values, and beliefs.
• The input of family members or others close to the person.
• The least restrictive option.

Best interest decisions are documented to show they were made fairly.

Lasting Power of Attorney

The MCA allows people to plan for the future by appointing someone they trust to make decisions for them if they lose capacity. This is called a Lasting Power of Attorney (LPA).

There are two types of LPA:

• One for health and welfare decisions.
• One for property and financial decisions.

The person who grants the LPA is called the donor. The person they appoint is the attorney. The attorney must always act in the best interests of the person.

Court of Protection

If no one has been appointed as an LPA and a person lacks capacity, the Court of Protection can step in to make important decisions. This might include decisions about treatment, care, or managing finances. The court can also appoint a deputy to act on behalf of the person.

The Mental Health Act 1983

The Mental Health Act 1983 (amended in 2007) is another important law in the UK that applies to individuals with mental health problems. It focuses on the assessment, treatment, and rights of people with mental disorders, especially in situations where they may pose a risk to themselves or others. The Mental Health Act aims to ensure that individuals receive appropriate care while safeguarding their rights and promoting their dignity. However, the application of this legislation is often influenced by the media portrayal of mental illness, which can lead to stigma and misunderstanding surrounding mental health conditions. It is crucial for lawmakers, healthcare professionals, and society at large to address these misconceptions to create a more supportive environment for those affected by mental health issues.

Detention Under the Mental Health Act

The Mental Health Act provides rules for detaining and treating individuals in hospital without their consent. This is often referred to as being “sectioned.” While this goes against the principle of consent, it is only done when absolutely necessary for the individual’s safety or that of others.

Relationship Between the MCA and Mental Health Act

In some cases, both the Mental Health Act and the Mental Capacity Act might apply. For example, a person with severe dementia may refuse treatment but lack the mental capacity to understand the consequences of refusing. In such situations, professionals must assess which Act to apply. There may be times when the Mental Health Act takes priority.

The Deprivation of Liberty Safeguards

The Deprivation of Liberty Safeguards (DoLS) are part of the Mental Capacity Act 2005. They protect individuals in care homes or hospitals who cannot make decisions and need to be supervised in a way that deprives their liberty.

What is a Deprivation of Liberty?

A person is deprived of liberty if:

• They are under continuous supervision and control.
• They are not free to leave their care setting.
• They cannot consent to this arrangement because they lack capacity.

DoLS Authorisation Process

When a care home or hospital believes that a deprivation of liberty is necessary to protect someone, they must apply for authorisation. This involves:

• A formal assessment by professionals.
• Checking that the deprivation is in the person’s best interests.
• Providing the individual and their family with rights to challenge the decision.

DoLS are currently being replaced by Liberty Protection Safeguards (LPS), which will expand protections to more settings, such as supported living.

Human Rights Act 1998

The Human Rights Act 1998 applies to everyone in the UK, including individuals with mental health problems. It ensures people are treated with dignity and respect, even when they cannot make decisions for themselves.

Key rights under this Act include:

• Right to liberty and security (Article 5) – Protects against being detained unlawfully.
• Right to private and family life (Article 8) – Protects personal autonomy and privacy.

Any decision made on behalf of a person must consider their human rights. For example, depriving someone of their liberty under DoLS must follow strict legal processes.

Care Act 2014

The Care Act 2014 is another law that offers guidance for supporting individuals who cannot make decisions due to mental health problems. It focuses on adult social care and promotes well-being.

Relevant Duties Under the Care Act

The Care Act requires local authorities to:

• Assess a person’s care and support needs.
• Consider the individual’s mental capacity in these assessments.
• Involve them as much as possible in decisions about their care, even if they lack full capacity.

It also introduces advocacy support for individuals who struggle to represent themselves. An advocate is someone who helps the person understand the care process and ensures their voice is heard.

Safeguarding Vulnerable Groups Act 2006

This Act protects individuals who may be unable to make decisions for themselves by regulating people who work with vulnerable individuals. It ensures that only those suitable to care for vulnerable individuals are allowed to work in such roles.

Support Workers’ Responsibilities

If you are a support worker, your actions must follow the legal provisions mentioned above. You should:

• Be familiar with laws like the Mental Capacity Act and how they apply to your role.
• Know how to carry out a capacity assessment or refer to someone qualified.
• Recognise when DoLS apply in your care setting.
• Always act in the best interests of the individual.
• Document decisions carefully and include the views of the person’s family or advocates.

You must also report any safeguarding concerns. If someone is at risk of harm, this should be escalated immediately according to your organisation’s procedures.

Final Thoughts

Legal provisions like the Mental Capacity Act and the Mental Health Act help ensure people who cannot make decisions due to mental health problems are supported, protected, and treated fairly. As a support worker, understanding and applying these laws helps you provide the best care while upholding the rights of those in your care. Keep their dignity, well-being, and safety at the heart of everything you do.