But first, some basics…

My role involves primarily dealing with 3 pieces of legislation: Mental Health Act 1983; Mental Capacity Act 2005 and Care Act 2014. I am going to attempt to summarise the key bits of these pieces of legislation insofar as they relate to core adult social care local authority work for you, in case you read any of my other posts and think I am assuming too much knowledge on your part.

Mental Health Act 1983

This Act primarily sets out the legal process for treatment of people with mental disorders. In summary it allows Approved Mental Health Professionals (AMHPs) to authorise the compulsory detention of people with mental disorders for the purposes of assessment (section 2) or treatment (section 3). It also sets out police powers in relation to enduring the safety of mentally disordered individuals if at risk in a public place (section 136) or to obtain a warrant if they are in a private dwelling (section 135).

It also creates the role of nearest relative as a safeguard against arbitrary detention. The nearest relative is identified through a hierarchy in the Act, and must be consulted about the patients care. They have the power to object to detention, and to request discharge.

AMHPs, and patients are able to apply to the county court to displace the nearest relative, on limited grounds, or to appoint one if a nearest relative within the hierarchy cannot be identified. This appointed nearest relative can be a relative who doesn’t fall within the hierarchy, a friend or, as last resort, an officer of the social services authority.

The Act also contains a framework for dealing with mentally disorder offenders in the criminal courts.

In addition, it creates and defines the concept of mental health aftercare. This is set out in section 117 which requires local authorities and clinical commissioning groups to provide free of charge services to meet a need related to or arising from their mental disorder and aimed at preventing a deterioration in mental health and readmission to hospital. This is where a lot of disputes arise because CCGs and LAs will often argue about what does and doesn’t fall within this definition. They will also have to agree what care and support is put in place and how that is funded and you’ll see from a later post that co-operation between these organisations is not always what it should be.

It also sets out the framework for the Mental Health Tribunal, by which patients can challenge their detention.

Mental Capacity Act 2005

This sets out the test for how to assess whether someone lacks capacity to make decisions and the principles of decision making to be used where people lack capacity. These are so vital to the work I do every day, that I am going to set these out in full for you.

1 The principles

(1) The following principles apply for the purposes of this Act.

(2) A person must be assumed to have capacity unless it is established that he lacks capacity.

(3) A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.

(4) A person is not to be treated as unable to make a decision merely because he makes an unwise decision.

(5) An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.

(6) Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.

2 People who lack capacity

(1) For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.

(2) It does not matter whether the impairment or disturbance is permanent or temporary.

(3) A lack of capacity cannot be established merely by reference to–

(a) a person’s age or appearance, or

(b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity.

(I’ve omitted some subsections that aren’t relevant just now)

3 Inability to make decisions

(1) For the purposes of section 2, a person is unable to make a decision for himself if he is unable–

(a) to understand the information relevant to the decision,

(b) to retain that information,

(c) to use or weigh that information as part of the process of making the decision, or

(d) to communicate his decision (whether by talking, using sign language or any other means).

(2) A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means).

(3) The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.

(4) The information relevant to a decision includes information about the reasonably foreseeable consequences of–

(a) deciding one way or another, or

(b) failing to make the decision.

The case law provides more detailed guidance on the relevant information for specific decisions, but let’s keep it general for now.

In addition, it provides the best interests framework, which will keep cropping up in my posts, so let’s note that as well.

4 Best interests

(1) In determining for the purposes of this Act what is in a person’s best interests, the person making the determination must not make it merely on the basis of–

(a) the person’s age or appearance, or

(b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests.

(2) The person making the determination must consider all the relevant circumstances and, in particular, take the following steps.

(3) He must consider–

(a) whether it is likely that the person will at some time have capacity in relation to the matter in question, and

(b) if it appears likely that he will, when that is likely to be.

(4) He must, so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him.

(5) Where the determination relates to life-sustaining treatment he must not, in considering whether the treatment is in the best interests of the person concerned, be motivated by a desire to bring about his death.

(6) He must consider, so far as is reasonably ascertainable–

(a) the person’s past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity),

(b) the beliefs and values that would be likely to influence his decision if he had capacity, and

(c) the other factors that he would be likely to consider if he were able to do so.

(7) He must take into account, if it is practicable and appropriate to consult them, the views of–

(a) anyone named by the person as someone to be consulted on the matter in question or on matters of that kind,

(b) anyone engaged in caring for the person or interested in his welfare,

(c) any donee of a lasting power of attorney granted by the person, and

(d) any deputy appointed for the person by the court, as to what would be in the person’s best interests and, in particular, as to the matters mentioned in subsection (6).

(11) “Relevant circumstances” are those–

(a) of which the person making the determination is aware, and

(b) which it would be reasonable to regard as relevant.

Best interests applies to anyone making decisions on behalf of an incapacitated adult. That is all professionals, family members, attorneys, deputies and the court. Its only a valid best interests decision if these provisions are followed, and the best way any decision maker can protect themselves for challenge in the future is by keeping a clear record of the factors taken into account andv the reasons for their decision. But more on that another time.

The Act also creates the Court of Protection, which I’ve already started to cover in a few posts, handily categorised for your convenience. Advance decisions to refuse treatment and lasting powers of attorney are also created by the Mental Capacity Act, which I’ll try to cover in the future as well.

Finally, it creates the Deprivation of Liberty Safeguards and the Liberty Protection Safeguards which I’ll cover in detail because these are something of a pet project of mine.

Care Act 2014

I have been this job for long enough that I remember the Pre-Care Act world, where we were looking at 3+ pieces of legislation just to understand what duties the local authority had. I am not a resounding fan of the Care Act, by the codification made my life so much easier.

The Care Act starts with general duties around considering well-being, prevention of needs, co-operation and market shaping. Depending on the attitude of each authority, a lot of these can seem somewhat aspirational.

But the core business of the Care Act is in setting out when the local authority has a duty to provide you with care and support. This starts with assessment of your needs against the eligibility criteria. If you are assessed as eligible, then the local authority will then start care and support planning, seeking to agree with you what services are appropriate.

Running alongside this is the financial assessment. This looks at your income and capital and assesses how much you can afford to pay towards your care and support. If you own capital (savings etc) over £23,500 then you’ll be expected to pay the full cost of your care, and may be signposted to services to arrange them privately yourself.

I could write such a long post just on these two processes, but I think it is better for your sanity (and mine) if we break it down issue by issue in various posts as we go along.

The Care Act also requires the local authority to review support regularly, and offers increased options for individuals including direct payments and the ability to ‘top up’ care. It includes duties towards carers with eligibility criteria for support for them too.

It also contains the local authority’s safeguarding duties, and I have definitely marked them for more detailed discussion in the future.

So hopefully we are now all on the same wavelength.

In case it isn’t obvious from the fact I still haven’t identified the authority I work for, the views expressed on this blog are my own opinion and not the opinion of that local authority

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