Care and support - Mental Capacity Act - Personal budgets for people who may lack capacity
People accessing support under the Care Act may lack mental capacity to make some or all of the decisions involved.
Overview
As a result of illness or disability, a significant number of people accessing support under the Care Act may lack mental capacity to make some or all of the decisions involved,
Therefore, the principles and requirements of the Mental Capacity Act must be fully integrated into the way Care Act processes are designed and operated.
Features
What does it mean?...At first contact
- Potential issues of mental capacity are identified, so appropriate support and procedures can be put in place for assessment
- Information offer includes advice about how to plan for the risk of future loss of mental capacity (eg lasting power of attorney).
WHAT DOES IT MEAN ...AT ASSESSMENT
- The individual's mental capacity to make decisions about the assessment (eg who supports them, how it should be carried out) is considered, and not taken for granted.
- Face-to-face assessment arranged for anyone who may lack mental capacity, along with support to help them make their own decisions
- Formal assessment of mental capacity by a social worker or other suitably qualified professional where there is reason to think the individual may lack capacity to take decisions about the assessment or the options for their care and support
- Where the person lacks capacity to make decisions, those decisions are made in their best interests in line with the Mental Capacity Act
- Proper records are kept of any judgment about the person's mental capacity to take a particular decision and of how any best interests decisions were made
- Ensuring anyone with legal authority to take decisions on behalf of the individual (eg holder of lasting power of attorney) is appropriately involved
- Steps are taken to obtain authority for someone else to take financial decisions on behalf of the individual where necessary (eg application to the Court of Protection)
WHAT DOES IT MEAN ...AT PLANNING STAGE
- Where people cannot make their own decisions, those decisions are made in their best interests in line with the Mental Capacity Act.
- Minimising restrictions on the individual, in line with the principles of both the Care Act and the Mental Capacity Act
- Plans include measures to help the individual develop mental capacity to take their own decisions, where possible
- Correct legal procedures followed where the proposed plan may mean the individual will be deprived of liberty (deprivation of liberty safeguards)
- Offer of direct payments (DPs) to eligible authorised people on behalf of individuals who lack capacity to request DPs themselves
- Individuals' entitlement to assistance from an Independent Mental Capacity Advocate (IMCA) respected and acted on.
WHAT DOES IT MEAN ...FOR MONITORING AND REVIEW
- The likelihood that the person may lack mental capacity to request a review themselves is taken into account in deciding the frequency of reviews
- The individual's mental capacity (or lack of mental capacity) to make decisions about the review is considered, and not taken for granted
- Mental capacity is re-assessed where there is reason to think that individual may have lost or gained capacity to make relevant decisions.
Problem
As a result of their illness or disability, a significant number of people accessing support under the Care Act may lack mental capacity to make some or all of the decisions involved. If they cannot make those decisions for themselves, the decisions will have to be made for them in their best interests, in line with the "best interests checklist" in the Mental Capacity Act (MCA).
The principles of the two Acts are deliberately designed to be complementary. Both emphasise the importance of approaching decisions from the individual's perspective, making their wishes and feelings central to the process, and enabling them to participate as much as possible.
The challenge is ensure that people who lack mental capacity gain the same advantages from personal budgeting processes as everyone else, while recognising the inevitable differences in the way those processes may have to operate.
Solutions
Effective training for all staff in the principles and requirements of the Mental Capacity Act (MCA) will help avoid common mistakes, such as:
- assuming that agreement indicates mental capacity or that disagreement indicates a lack of capacity
- assuming people with particular conditions (eg learning disabilities, dementia) automatically lack mental capacity to make decisions for themselves
- deciding people lack mental capacity before they have been given help to make the decision in question for themselves
- wrongly assuming that family and carers automatically have the right to take decisions on behalf of people who lack mental capacity
- failing to get proper legal authority for care arrangements which involve a deprivation of liberty (either in a care home or elsewhere)
The training can usefully be reinforced by appropriate prompts in standard procedures and documentation (eg assessment forms, care and support plans).
A Mental Capacity Act (MCA) Directory of resources is published on the SCIE website.
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