Mental Capacity

Everyone has the right to have their voice heard, especially when it's about their health, care and wellbeing.

Not everyone can do this easily - so that's where an advocate comes in. They give people a voice when they find it difficult to express their views, but more than that - they make sure that decisions about them are not made without them.

Some young people may benefit from having an advocate. Carers can also access the advocacy service.

Across South Yorkshire, Cloverleaf is commissioned to offer this support.

The Mental Capacity Act 2005 is law in England and Wales. It says that people who are 16 years old and have the mental capacity should be given the chance to make decisions for themselves, even if sometimes these are ones that other people don’t agree with!

It covers both big and small decisions. In healthcare, these can range from whether to take a multi-vitamin through to whether to have a major operation.

The Act says anything you do or any decision you make for a person who lacks capacity must be in their best interests. Practitioners making a ‘best interests’ decision for someone else should:

• talk to people who know them to find out about their life (likely to be parents when it is a young person)
• factor in what they know about what the person wants, how they feel and what they believe
• include the person themselves in making the decision as much as possible
• put the person’s needs at the centre – not those of anyone else
• not make any assumptions about them, for example, because of their age or behaviour
• make sure the decision minimises any impact on their rights and freedoms.

If delaying the decision might mean the person can make it for themselves (for example, waiting for them to recover from an illness) then this is usually the best way forward unless the decision needs to be taken quickly.

If having the treatment is in the person’s best interests, but might impact on their personal freedom (for example, they may need to be restrained for their safety during a procedure or kept in hospital for a period), there are special protections in law. The medical team will need to apply to the court. For more information, click here Deprivation of liberty - Mind

Easy Read version

Sometimes young people may not want to take on more responsibility for making their own decisions. They might feel quite content to let their parents continue to organise things and have conversations with health practitioners on their behalf.

This can put both parents and health practitioners in a difficult situation when a decision needs to be made. Health practitioners have a legal duty to communicate with the young person about their options and establish whether they have the capacity to make the decision themselves. Parents can feel stuck in the middle if their young person doesn’t want to engage.

It can really help if a young person understands well ahead of their 16^th birthday that things are going to change. Supporting them to think about how they can make their voice heard can really reap rewards further down the line.

If they have sufficient maturity and understanding, health practitioners may enable some children to make decisions about their own care before they get to 16 yrs – although they will normally be encouraged to talk it over with their families too.

For example, they may be able to decide whether they want to:

• Go ahead with a brace for their teeth
• Get a vaccination
• Attend physiotherapy appointments
• Have an operation

This doesn’t apply to all children, just those who can demonstrate the level of understanding and maturity required to make an informed decision.

In serious situations, where medical staff feel that the child is putting themselves at serious risk, parents can consent to treatment instead of the child.

Mental capacity is when a person has the ability to:

• understand information given to them in relation to a decision
• remember the information long enough to make a decision
• think about and weigh up the information
• communicate their decision in any way which can be understood

If someone can’t make a decision for themselves on one occasion, it could be that they will be able to do this on another occasion. Their mental capacity should be considered in relation to each decision that comes up, to make sure that they have as much choice and control as possible over their own life.

Some young people and adults will always find it difficult, or impossible, to make decisions for themselves. Every day, the people around them who care for them and support them, make routine decisions on their behalf based on their best interests.

As parents, you know what sorts of decisions your young person can and can’t make for themselves and act accordingly. For example, them choosing what to have for dinner may be fine – but not whether to take their medication (because they don’t understand the risks of not taking it).

You will be exercising your judgement on these sorts of issues day in day out, and be so used to doing it that you probably won’t even give it a second thought!

When they turn 16 yrs, these day to day situations won’t change – but the practitioners working with your young person will act differently when a decision needs to be made. Instead of asking you for consent, they will need to establish whether your young person has the mental capacity to make the decision for themselves (through a mental capacity assessment). If your young person doesn’t have capacity, then the practitioner will make a ‘best interests’ decision on their behalf. This might be so they can provide some new treatment or medication.  

It can seem strange, or even be upsetting, to find that you can’t make the decision on your young person’s behalf any more but it’s important to remember that this isn’t because your views don’t count, it just reflects the change in the law.

This will be carried out by the practitioner who is supporting the young person or adult with the particular issue. For example, if a decision needs to be made about going on to a new medication, it would be the doctor who was going to prescribe it.

To give people the best possible chance of making decisions for themselves, the Act expects that they will:

• Be given all the relevant information, including about their different options
• Have opportunities to get support from other people who know them well and who could help them understand, such as their family
• Get the information in a way that helps them understand e.g. it could be given in a different way like in pictures.
• Get the information in a place or situation where they feel comfortable and can take it in
• Get time to think about it and have the information repeated if needed

Yes. This is possible in certain circumstances.

If a young person doesn’t have capacity to make their own decisions about their healthcare, then the Court of Protection can appoint somebody to be their ‘deputy’. The ‘deputy’ then has legal authority to make particular decisions for the young person. This can be put in place from 16 yrs onwards. A parent or carer has to make an application to the court to become a deputy and there is a cost attached (with help for people on low incomes).

If the young person is able to make their own decisions currently – but may not be able to in the future – then the young person may decide they want someone to have ‘lasting power of attorney’ for when they lose capacity. This can be in place from 18 years onwards.

Appointees, deputies and power of attorney - Mencap

Whatever arrangements are in place, ultimately decisions about healthcare will always be made based on the person’s best interests.

In terms of healthcare, not much changes when the young person gets to 18 years. The main changes to who can give consent are at 16 years.