ADVANCE DECISIONS TO REFUSE TREATMENT – an advance refusal of a specified treatment made by a person at a time when they have capacity to make that decision, to be brought into play when that person is no longer able to make that decision for themselves. If it meets certain formal requirements, an ‘ADRT’ is legally binding.
ADVANCE STATEMENTS – a statement about the sort of care that someone would wish to receive, or any aspect of their future health or social care. An advance statement is not legally binding, but must be taken into account by anyone who is making decisions about your care in your best interests, as evidence of your wishes, values and beliefs.
ADVOCACY – Advocacy services help people – particularly those who are most vulnerable in society – to:
access information and services
• be involved in decisions about their lives
• explore choices and options
• defend and promote their rights and responsibilities
• speak out about issues that matter to them
ARBITARY – based on random choice or personal whim, rather than any reason or system. “an arbitrary decision”
ASSESSMENT OF CAPACITY – the law sets out how you can assess capacity to make a particular decision (see also “LACKING CAPACITY” and “MENTAL CAPACITY”). Anyone carrying out an assessment must apply the following principles:
(i) Every adult has the right to make their own decisions. You must assume that someone is capable of making a decision unless it is established otherwise, applying the tests set out in the Mental Capacity Act. You should not assume that someone can’t make a decision just because they have a particular disability or condition, or if they have been unable to make that decision at some point in the past, that they are necessarily unable to make that decision now.
(ii) Before applying the test, all practicable steps should be taken to provide help and support to the person concerned to enable them to make and communicate the decision. The person should be given all the information they need to make the decision presented in a way that is as easy to understand as possible e.g braille, pictorial, sign language. Blinking or squeezing a hand may be enough to communicate a decision. If any doubt remains, you may wish to consider obtaining a second opinion from a healthcare professional on whether the person lacks capacity.
(iii) You should not treat someone as lacking capacity just because they choose to make an unwise decision. The test concerns the ability to make a decision, not how sensible you think it is.
ATTORNEY – A person given power to act as best interests decision-maker on a Donor’s behalf through a Lasting Power of Attorney (LPA) or an Enduring Power of Attorney (EPA). EPA’s are only legal if made prior to 2007, after 2007 a person must have made a LPA at a time when they had capacity to do so. An attorney under an EPA only has power in relation to a person’s property and financial affairs, while an LPA can cover decisions relating to a person’s property and finances, or health and welfare, or both.
BEST INTERESTS – If anything is done or any decision is made for people who lack capacity to make a decision for themselves it must be in their best interests. This means what is best for the person, rather than just what anyone else wants, although the best interests decision-maker must take into account the views, if practicable and appropriate, of various persons; specifically anyone named by the person, anyone engaged in caring for them or interested in their welfare or a legally appointed attorney or deputy. The person’s own wishes, values and beliefs, both now and before losing capacity, are likely to weigh heavily. Best interests must be interpreted very widely, to include social, and emotional factors, and not just medical welfare or safety.
BEST INTEREST ASSESSOR – this is a professional whose role within the Deprivation of Liberty Safeguards (DOLS) is to assess whether or not a deprivation of liberty (see also “DEPRIVATION OF LIBERTY” and “DEPRIVATION OF LIBERTY SAFEGUARDS (DOLS)”) is in the person’s best interests, is necessary to prevent harm to the person and is a proportionate response to the likelihood and seriousness of that harm.
CAPACITY – (see “MENTAL CAPACITY”)
COURT OF PROTECTION – The specialist court that deals with cases relating to capacity and best interest issues.
DECISION MAKER (BEST INTERESTS) – Typically the person responsible for delivering the treatment or care about which a best interests decision is required will be the best interests decision maker. E.G. Day to day person’s primary carer, medical treatment would be decided by person delivering it e.g. doctor, nurse. An appropriate lasting power of attorney or deputyship may mean that the attorney or deputy is appointed the decision maker instead.
DECISIONS THAT ARE NOT COVERED – Some types of decision (such as consenting to sex, marriage, divorce, adoption and voting) can never be made by another person on behalf of someone who lacks capacity, even if they are an ‘attorney’ or a ‘deputy’ (for a full list see sections 27-29 Mental Capacity Act 2005 (MCA)). The test for capacity to make those decisions, though, is still covered by the MCA.
DEPRIVATION OF LIBERTY (DoL) – A person lacking capacity to consent to it is deprived of their liberty if they are ‘under continuous supervision and control’ and are ‘not free to leave’. A person’s compliance with their care, or the quality or appropriateness of the care they receive is not relevant to the question of whether or not that person is deprived of their liberty. See also “DEPRIVATION OF LIBERTY SAFEGUARDS (DOLS)”
DEPRIVATION OF LIBERTY SAFEGUARDS (DOLS) – Article 5 of the European Convention on Human Rights states that ‘everyone has the right to liberty and security of person. No one shall be deprived of his or her liberty [unless] in accordance with a procedure prescribed in law’. The Deprivation of Liberty Safeguards is the legal procedure by which the deprivation of liberty of a resident or patient in a registered care home or hospital can be legally authorised, who lacks capacity to make decisions about their care and treatment in their best interests..
DEPUTY – A person appointed by the Court of Protection to deal with a specific issue or a range of issues to help a person who lacks capacity and who hasn’t got an attorney.
DEPUTYSHIP – see “DEPUTY”
DONOR – A person who appoints an attorney (see also “LASTING POWER OF ATTORNEY”)
FLUCTUATING CAPACITY – When a person has capacity to make their own decisions at some times, but not at other times (for example, during an acute phase of illness). This should be treated with some care because, of course, capacity is time and decision specific – i.e. the question is whether the person has capacity for the specific decision, at the particular time it needs to be made. Decisions should be deferred until the person has capacity to make them, if possible.
IMCA (INDEPENDENT MENTAL CAPACITY ADVOCATE) – a person who provides support and representation for a person who lacks capacity to make decisions in certain defined circumstances (usually in relation to major decisions where that person does not have any family, friends, an attorney or a deputy to provide that support).
INFORMED DECISION – A decision made by someone who has all the relevant information in order to be able to make that decision. The relevant information will depend on the decision in question.
JUDICIAL REVIEW – a procedure by which a court can review an administrative action or decision by a public body and secure a declaration, order, or award. “The exercise of these powers may be challenged by judicial review”. In broad terms, the principle of judicial review is to test that the public body has acted properly within its powers, and not to substitute the court’s own decision for the public body’s.
LACKING CAPACITY – When someone is unable to make a particular decision at a particular time because of a temporary or permanent impairment in the function of their mind or brain, and because they cannot do one or more of the following four things.
(i) Understand information relevant to that decision.
(ii) Retain that information long enough to be able to make that decision.
(iii) Weigh up the information available to make that decision.
(iv) Communicate their decision. This could be by any possible means, such as talking, using sign language or even simple muscle movement such as eye blinking or squeezing a hand.. Capacity may vary depending on the time and type of decision that has to be made.
LASTING POWER OF ATTORNEY (LPA) – A legal document that lets a ‘donor’ appoint one or more people (known as ‘attorneys’) to make decisions on their behalf at a point where they are lacking capacity to make that decision. There are two types:
1 Property and financial affairs, e.g. paying bills, organising a pension. Can be used at any time.
2 Personal welfare, e.g. making decisions about medical treatment and how someone is looked after. This can only be used when person lacks capacity for the decisions in question.There are formal requirements, and an LPA must be registered with the Office of the Public Guardian before it can be used.
MENTAL CAPACITY ACT 2005 – The Mental Capacity Act (or MCA) aims to empower and enable people to make their own decisions, and to make sure that people who lack capacity to make decisions are protected by structured decision making, involving them and their best interests. The five key principles are:
(i) A person must be assumed to have capacity unless it is established that he lacks capacity.
(ii) 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.
(iii) A person should not be treated as unable to make a decision merely because he makes an unwise decision.
(iv) 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.
(v) 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..
MENTAL CAPACITY – Refers to the ability of a person to make a particular decision at a particular time, whether minor, like what to eat, or major like treatment decisions. If you have mental capacity for a particular decision, you are able to make that decision for yourself. See also “LACKING CAPACITY”.
OFFICE OF THE PUBLIC GUARDIAN – The ‘OPG’ monitors Court-appointed deputies, and keeps a public register of attorneys and Deputies. It also investigates concerns about attorneys and deputies, and provides general information / advice on becoming a deputy, and registering Lasting Powers of Attorney.
PPR (PAID PERSON’S REPRESENTATIVE) – A paid RPR (usually an IMCA) – see also “RPR (RELEVANT PERSON’S REPRESENTATIVE)” and “IMCA (INDEPENDENT MENTAL CAPACITY ADVOCATE”)
PARENTAL RESPONSIBILITY – A set of duties responsibilities and powers enabling specific adults (or a Local Authority) to make significant decisions about a child up until the age of 18.
POWER OF ATTORNEY – see “LASTING POWER OF ATTORNEY”
PRACTICABLE – Whatever is capable of being done in the circumstances.
PROPORTIONALITY -. The concept of proportionality is used as a criterion of fairness and justice in interpreting the law, . In this context, it refers to striking the correct balance between the restriction imposed on a person lacking capacity and the severity / likelihood of any harm that person may come to.
RPR (RELEVANT PERSON’S REPRESENTATIVE) – A person appointed by the Local Authority as Supervisory Body under the Deprivation of Liberty Safeguards (DOLS) to ensure that a person who is deprived of their liberty under a DOLS authorisation is supported to exercise their legal rights and protections. This will usually be a family or friend, or a PPR if no one appropriate is available to fill this role.
SIXTEEN TO SEVENTEEN YEAR OLDS – most of the Mental Capacity Act applies to young people aged 16 – 17 although under 18’s will not be able to make a Lasting Power of Attorney or an Advance Decision to Refuse Treatment. The Deprivation of Liberty Safeguards only apply over the age of 18, but following a judgment of the Court of Appeal in November 2017 (at least pending an expected appeal to the Supreme Court), a situation that might otherwise amount to the deprivation of liberty of a 16-17 year old who cannot make the relevant decision for themselves can now, in certain circumstances, be lawful with the consent of those with parental responsibility.