The law giveth – the law taketh away

All rights are freedoms (liberties). They include the freedom to do things – to make choices for example. They also include freedom from things – assault and other forms of exploitation or abuse. In short every choice you make for yourself is an expression of your right to decide. Your service users have the same rights unless there is a legally justifiable reason to restrict them. This emphasis upon individual rights is why the Mental Capacity Act is really just another layer of safeguarding. It protects the right to decide and also defends people who lack capacity to make decisions from exploitation and abuse.

Different situations call for different responses but don’t worry it’s not so hard to understand if you get the basic point about the three types of situation in your head first.

The Mental Capacity Act 2005 tells us that we can restrict an individual’s liberty because they lack mental capacity. But it’s not ‘across the board’.  Sometimes people are quite able to make some decisions for themselves even though they can’t make other decisions. So our judgement, our assessment of capacity has to be ‘decision specific’.

Three types of legal status

Every decision we face at work involving service-users, residents or patients/clients will fall into one of these three categories. It’s important to be clear about which category is which because it affects the whole legal situation.

The law giveth …. The law taketh away

Every UK citizen has the same basic rights in law unless the law removes them. The Mental Capacity Act 2005 will allow us to restrict a person’s liberty in their own best interests but only if:

• They lack the capacity to make this decision at this time;
• The restriction is proportionate in the circumstances;
• The restriction is in that person’s best interests (not the best interests of the staff, the relative or anyone else).

Also remember that a person’s legal status changes depending upon the situation under consideration. For example:

1. George knows what he wants for tea – he’s us;
2. George doesn’t understand what to do about his will – he’s in the Bournewood Gap;
3. George is suicidal – cared for under the Mental Health Act.

As you can see, the difference isn’t to do with a change in George so much as a change in the subject we’re considering. George could, at the same moment be detained in a psychiatric hospital because of his suicidal behaviour, need assistance under the mental capacity act to sort out his will and be perfectly capable of choosing what to eat from the hospital menu.

The reason that issues of capacity seem so confusing is that people often fail to understand this idea of the 3 groups (or 3 types of question).

• Nobody has capacity for every decision – just try deciding how to solve the problem of global conflict to see what I mean.
• Almost everybody has capacity to decide something – even if it’s just that they feel cold and would like to wear a cardigan.
• It is unlawful to decide that any conscious person lacks the capacity to make all decisions. That has been illegal in England and Wales since April 1st 2007.
• Even if they’re unconscious we must consider the likelihood of them regaining capacity (consciousness) and making their own decisions before we ‘jump in’.

Watch me explain this concept to a group of support workers in the video below.