David Pennington CSIP SW Tim Smoldon CSIP SW Michelle Starkey Dorset Advocacy

1. Commissioning Independent Mental Capacity Act Advocates:A guide for potential providers of services David Pennington CSIP SW Tim Smoldon CSIP SW Michelle Starkey Dorset Advocacy

3. Today will • Provide information on the Capacity Act and in particular the Role of the Mental Capacity Advocate • Be an opportunity to look at how the service may be commissioned and to hear about the experience of providing the IMCA service • An opportunity to meet other organisations that may be considering applying to provides IMCA’s, and to ask questions

4. The Mental Capacity Act 2005 becomes law 1st April 2007

5. Who Is Affected • Mental capacity could affect anybody • Over 2 million people in England and Wales lack mental capacity to make some decisions for themselves • Up to 6 million family carers, carers, health and social care staff

6. Until all practicable steps have been taken to help someone make a decision without success, they cannot be treated as lacking capacity Person must be assumed to have capacity unless proved otherwise An unwise decision is NOT to be taken as a lack of capacity Principles Do things or take decisions for people without capacity in their best interests Before doing something, consider whether you could achieve the outcome in a less restrictive way

7. Assumption of Capacity and Supported Decision Making • Act sets out an assumption of capacity • Obligation to take all practicable steps to help the person take his or her own decision • Act makes it clear that a person’s age, appearance, condition or behaviour does not by itself establish a lack of mental capacity • Must give information in a clear and easy way to understand • Must help the person who lacks capacity to communicate

8. The test for Capacity (section3) A person must be able to..

9. Best Interests • All decisions must be made in the best interests of the person who lacks capacity • It is the key principle that governs all decisions made for people who lack capacity • Same as the current common law • Must consider all relevant circumstances • Act doesn’t define best interests but does give a checklist: • Must involve the person who lacks capacity • Have regard for past and present wishes and feelings • Consult with others who are involved in the care of the person • There can be no discrimination

10. Advance decisions to refuse treatment • Planning ahead when you have capacity • Can only be made by those over 18 with capacity • A specified treatment may be expressed in layman’s terms • A person can withdraw or alter an AD at any time they have the capacity to do so

11. AD life-sustaining treatment • Must be in writing AND • By signed by the person (or another person in that person’s presence as directed by them) AND • A witness signs it in the person’s presence AND • The decision is verified with a statement that it applies to that treatment even if life is at risk • However AD does NOT override the MHA if the person is on a section and the AD relates to treatment for mental illness

12. Lasting powers of attorney (LPA) • Enables you to appoint someone you know and trust to make decisions for you on your behalf • Two types of LPA • Property and affairs • Personal welfare which is a new way to appoint someone to make health and welfare decisions for you • Must be made while you have capacity

13. Personal Welfare decisions • Are restricted to decisions where the person lacks capacity • Can override a previous advance directive • Can include giving or refusing consent to health care treatment • Can include giving or refusing consent to life-sustaining treatment where the LPA has expressly provided for this