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Mental Capacity Act
Suggested issues for senior management’s attention in the public and private sectors
Policies/Paperwork
• Relevance of capacity to all actual adult safeguarding interventions
• Relevance of capacity in an issue-specific sense for all aspects of meeting people’s needs in the community, especially where it is desired that the person has a tenancy.
• Relevance of capacity to consent to direct payments where no LPA exists.
• Need for Social Care to understand that it will face flak for those falling between discretionary supporting people services, and mandatory meeting of eligible assessed social care needs – in relation to those in the community.
• Need for commissioners to appreciate that public bodies cannot contract for more than they themselves have power to contract. So there is no vires to ask SP providers to detain people in their own homes, or to protect against risks that are within the person’s own capacitated decision-making arena – and consequently no ‘duty of care’ floating around out there.
• Appreciation by all concerned that restraint is legal but not necessarily or automatically an element of a duty of care – which would depend on contract and the amount of money paid for taking on that responsibility.
• Policies dealing with advance decision cases and situations where LPAs are considered to have a financial or other conflict of interest when refusing treatment for a donor.
• Information sharing protocols – raising awareness of the need for best interests decision making consistent with confidentiality, data protection and human rights, for sharing incapacitated people’s data with others, such as landlords, MAPPA authorities, Support and Care providers etc.
Funding and professional turf wars
• Paying for IMCA advocacy when the money has run out but people still qualify – and IMCA and general advocacy in cases where families are warring between themselves and one is an LPA…
• Paying out to maximise capacitated decisions – speech therapy, Makaton signers, pictoral representation of treatment etc
• Agreement between LAs and PCTs and hospital doctors about expectations on getting expert input into capacity assessments – the LA is the client in this relationship!
• Ambulance Trust awareness of the Act, re physical ailments that may negate capacity, and GP awareness/willingness to do capacity assessments.
Independent living issues
• Assessing capacity of people coming out of long term settings and residential care, or staying in de-registered settings, to understand and contract for a tenancy; simple deputyship if not (see the Cornwall saga)
• How, lawfully, to supervise vulnerable people we have facilitated into tenancies, if the ‘care’ we are providing amounts to de facto detention?
