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When a neurotypical or “normally developing child” reaches their milestone age, it is celebrated and recognised that they are becoming adults. At 16, they can consent to sex and move on to college or higher education. At 17, they can learn to drive. At 18, they can buy alcohol or cigarettes; then, at 21, they are celebrated as fully grown adults. We accept that from 16, they can make their own choices and mistakes and that their lives are becoming their own to control. 

In contrast, if you are diagnosed with a condition where you’re seen as vulnerable or less able, do you get handed the same decision-making rights? Are these milestone ages celebrated in the same way? The answer to this is often a resounding “No”. 

A struggle often begins over who can make the decisions about a person’s life. If it is a health matter, does the doctor know best? If the person themselves disagrees, then who do we listen to? When their family has a different opinion, then do they decide? Often decisions became less about the person and more about who has the power to decide. 

The Mental Capacity Act Protects the Rights Of Everyone To Make Their Own Decisions.

Before the Mental Capacity Act, it was too often unclear who could make the decisions in a person’s life. There was no lawful consideration of the decisions an individual could make for themselves, which could be assessed. There was often an assumption that vulnerable people should be protected; they will remain in the form of childhood for their lifetime. Therefore parents, doctors, teachers, support workers, and social workers will know best.

When people we support lived in institutional hospitals, doctors and medical staff made the decisions. As they moved into the community, the decision-making mantle was passed to social workers, residential home managers and family. The decisions made often conflicted with the wants and desires of people we supported; when they attempted to make their own decisions, they were often labelled as “challenging”.

The Mental Capacity Act came into law in 2005, and although it applies to everyone is hugely important for the rights of the people we support. This simple, practical and clear piece of legislation protects the rights of everyone to make their own decisions. Gives a clear framework for assessing someone’s ability to understand and make a decision and then sets out how to make a decision for someone who is judged unable to decide for themselves.

The Five Key Principles of The Mental Capacity Act

There are five key principles within the Mental Capacity Act:

Principle 1 – Every adult has a right to make their own decisions, and they must be assumed to have the capacity to do so unless it is proven otherwise. You cannot assume someone can’t make a decision for themselves just because they have a particular illness or disability, either physical or mental.

Principle 2 – The right to be supported when making decisions. People should be supported to understand the decision, consider the different options and communicate their decision.

Principle 3 – An unwise decision cannot be seen as a wrong decision. Other people’s judgement on how wise the person’s decision is cannot be a reason to question their capacity to decide. For example, people choosing to smoke tobacco or drink alcohol may be seen as unwise but cannot indicate they lack capacity.

Principle 4 – Best interests must be at the heart of all decision-making when making a decision on behalf of a person who lacks capacity.

Principle 5 – Any intervention in a person’s life or freedom must be the least restrictive possible. For example, if a person cannot use a sharp knife safely, can these be locked in a drawer so a person can still use the kitchen safely?

Four Key Elements Are Assessed When Supporting the Decision-Making Process

Capacity is a key principle, and it means the person’s ability to make a specific decision. This can only be questioned if you identify a specific impairment affecting the person’s ability to make the decision. The act empowers those that may have their capacity questioned, as it is expected that they are given full support to understand the key information and make their decision. There are four elements that are assessed when supporting the decision-making process:

  1. Does the person understand the key information
  2. Can the person weigh up the pros and cons
  3. Can they retain the key information long enough to make a decision
  4. Can they clearly communicate their decision

If a person fails one of these steps, they can be judged as lacking capacity, but only for that decision. It does not affect other decisions or the person’s capacity.

The next step is who should be involved in making a decision in the person’s “best interests”. This group should be those relevant to the decision and that know the person well; it should consider the person’s wishes. If a clear agreement cannot be reached for a significant decision, then the Court of Protection can be asked to decide. To ensure the person’s views are represented, if there are no friends or family, an advocate can be appointed.

The clear structure, practical framework and flexibility of the act respect people’s rights to make decisions. It is empowering as it removes any judgement on the wiseness of the decision and recognises the rights of everyone from 18 years old onwards to make their own decisions. As this process should be recorded, it is transparent, allowing advocates, family and the person to challenge the process. For smaller decisions, the principles are still expected to be applied in day-to-day life, ensuring that people are allowed to make decisions without judgement.

Whilst no law that takes away or restricts a person’s right to make their own decisions will ever be perfect, this is a landmark in promoting and protecting the rights of the people we support. It is a cornerstone of good and empowering support. The person, their views, and their loved ones have a seat at the table when a best-interest decision is needed.

Transforming lives

Transforming care for the better