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Mental capacity and decision-making for carers

Life is full of decisions, and we often make them without paying much attention.

If you are caring for a friend, neighbour or relative with a mental health condition, brain injury or cognitive impairment, you may need to support them to make decisions or make decisions on their behalf.

You may also be involved with professionals making decisions about their health or care.

This guide takes you through the law on decision-making for people with conditions affecting the brain, and what your rights are as a carer.

You can also download and print out the guide as a PDF file.

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Key things to remember

> Mental capacity is a person’s ability to make decisions.

> The law covering mental capacity is called the Mental Capacity Act (2005). Some people may lose mental capacity to make certain decisions, due to a condition or injury affecting their brain.

> Having a particular condition or diagnosis doesn’t mean a person lacks mental capacity and can change over time.

> People should be supported to make as many decisions as they can.

> If a person lacks mental capacity to make a decision, even with help, decisions should be made of their behalf in their best interests.

> As a carer, you should be consulted in any best interests decisions made on behalf of the person you care for.

> If you disagree with a best interests decision, you can challenge it.

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What is mental capacity?

Mental capacity is the ability to make your own decisions.

Some people may lose mental capacity to make certain decisions, due to a condition affecting their brain such as dementia, mental illness or a brain injury. This may be temporary or permanent.

You can still be diagnosed with a condition that affects your brain and still have mental capacity to make decisions, or be able to make some decisions but not others.

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Mental capacity and the law

The Mental Capacity Act (2005) is the law that covers mental capacity, how it is assessed and what happens if you lose it.

The law says that you should assume someone has mental capacity and that they should receive as much support as possible to make a decision themselves.

It also says that you cannot judge that someone lacks mental capacity just because of their behaviour, appearance or diagnosis.

signs with choice pointing in opposite directions

When does a person lack mental capacity?

According to the Mental Capacity Act, a person lacks mental capacity if they have a condition or injury that affects the brain, and cannot:

> Understand information about the decision to be made.

> Remember the information.

> Use or weigh up the information to make a decision.

> Communicate their decision (verbally, using sign language, gesturing, etc.)

Lacking mental capacity isn’t the same as making bad choices. The person you care for may make decisions that seem unwise, but this does not necessarily mean they lack mental capacity.

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Who assesses mental capacity?

The person assessing mental capacity will depend on who is involved in the decision being made.

For example, if you are the person’s main carer, you will assess their ability to make day-to-day choices naturally.

However, if the decision is about medical treatment, capacity will be assessed by a health professional.

And if the decision is about where the person will live, capacity will be assessed by a social worker.

older person

When a person lacks mental capacity

If a person lacks mental capacity to make a particular decision, even with support, then a decision should be made in their best interests.

This means that any decision made on their behalf must:

> Consider the person’s views and wishes.

> Include the person as much as possible.

> Consider the person’s circumstances e.g. age, likelihood of recovery, etc. Consider whether the person may regain mental capacity, and whether the decision can be put off until then.

> Consult others who are interested in their wellbeing (including carers and close relatives).

> Be the least restrictive possible.

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Best interests - who decides?

As a carer, you may make best interests decisions for the person you care for on a day-to-day basis.

However, if the decision is regarding the person’s medical treatment or care, the decision maker may be a professional such as a doctor or care worker.

If you have caring responsibilities for a person, your views should be consulted before a decision is made, as long as it reasonable to do so. However, the final decision must ultimately be in the person’s best interests.

If you are a person’s Health and Welfare Attorney, you are authorised to make health and care decisions on their behalf. Any decisions you make must still be in their best interests.

As long as you are making decisions in the best interests of the person you care for, you are protected from liability by the Mental Capacity Act.

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What if I disagree with a best interests decision?

There may be times when you disagree with a best interests decision being made by a professional. In this case, you can:

> Ask for a second opinion.

> Ask for an advocate to speak up on behalf of the person you care for. Advocacy for Croydon provides advocacy in Croydon: advocacyforcroydon.org. Ask for a meeting with the people involved to discuss the situation.

> Ask for mediation to resolve the dispute.

> If the decision has already been made, you can make a formal complaint to the relevant organisation. For example, if you disagree with a best interests decision made by a social worker, you can complain to the local authority. For information on NHS and social care complaints, visit www.citizensadvice.org.uk/health/nhs-and-social-care-complaints.

> Very serious cases may need to go to the Court of Protection.

Further information

Making Decisions: A Guide for Family, Friends and Other Unpaid Carers.

Office of the Public Guardian (0300 456 0300).

Rethink (0300 5000 927).

If you would like to refer back to the law, you can read the Mental Capacity Act and Code of Practice. The Code of Practice is quite a long document, but you may find it helpful to quote from when contacting professionals.

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