Making Decisions

Mental Capacity Act 2005

The Act is based on five principles that apply to all adults.

  1. The presumption of mental capacity unless proved otherwise.
  2. The right to appropriate help and support before it is decided that a person lacks capacity.
  3. Individuals with Capacity may make unwise or eccentric decisions.
  4. Everything decided on an incapacitated person’s behalf must be done in his/her best interests.
  5. Everything done must be the least restrictive of the individual’s rights and freedoms.

Assessing the capacity to act and taking decisions on behalf of a person without capacity

  • The Act makes clear that incapacity applies not to an individual generally but to a particular decision.
  • To be incapable of making a particular decision an individual must not be able to understand, retain and weigh up information (including possible consequences) or communicate the decision. A failure to be able to achieve any ONE of these factors renders the person incapacitated to make this particular decision.
  • Decision-makers must always follow the best interests of the individual in making a decision.
  • An individual’s wishes may be put into writing as an “Advanced Decision” at a time when they had the capacity to consent.
  • Carers and families have a right to be consulted about best interests, but they cannot consent on behalf of another person unless they have “Lasting Power of Attorney” or they are appointed to make a decision by the Court of Protection.
  • Those caring for or treating an individual are protected from liability as long as they have properly assessed capacity and act in best interests in accordance with the Core Principles, and providing that their actions would not be illegal in any event.
  • Individuals may not be restrained or deprived of their liberty unless in cases of harmto themselves. Such restraint should be proportionate.
  • Some decisions are excluded. No-one maymake a decision on behalf of an incapacitated person concerning family relationships (including, marriage, sexual relations and adoption), Mental Health Act issues or voting.

New Bodies

The act sets up two new bodies

  1. A new Court of Protection
  2. A new Public Guardian

Designated decision makers

A Lasting Power of Attorney can be appointed by the person lacking capacity to make decisions, including medical and welfare decisions.
A deputy can be appointed by the Court of Protection, unless the court wishes to make its
own decisions.

Three new key powers

  1. An independent mental capacity advocate (ICMA) must or may (according to circumstances) be appointed to represent the wishes of individuals, to bring to the attention of decision makers all relevant factors and to challenge the decision of decision makers if necessary.
  2. Advance decisions to refuse treatment.
  3. A new criminal offence is created to deal with the ill treatment or neglect of an incapacitated person.

The Social Care Institute for Excellence (SCIE) have produced a range of leaflets, training packs and videos on this subject available from:


Social Care Institute for Excellence
Fifth floor
2-4 Cockspur Street
London SW1Y 5BH
Tel: 020 7024 7650
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Web: www.scie.org.uk

The British Institute for Learning Disabilities (BILD) alsop roduce some useful guidance and advice for the families and carers of learning disabled persons. Their guide to Deprivation of Liberty Safeguards (DoLS) is available to download at:-

www.bild.org.uk/humanrights/docs/

 

Easy to complete Lasting power of attorney forms for health and care decisions can be found here , a means tested fee applies 

 
No video selected.

Information on Statutory Bodies

Data Protection Act

Data Protection Act

The Data Protection Act gives individuals the right to know what information is held about
them. It provides a framework to ensure that personal information is handled properly.

The Act works in two ways. Firstly, it states that anyone who processes personal information must comply with eight principles, which make sure that personal information is:

  • Fairly and lawfully processed
  • Processed for limited purposes
  • Adequate, relevant and not excessive
  • Accurate and up to date
  • Not kept for longer than is necessary
  • Processed in line with your rights
  • Secure
  • Not transferred to other countries without adequate protection

The second area covered by the Act provides individuals with important rights, including the right to find out what personal information is held on computer and most paper records.

Should an individual or organisation feel they are being denied access to personal information they are entitled to, or feel their information has not been handled according to the eight principles, they can contact the Information Commissioner’s Office for help. Complaints are usually dealt with informally, but if this isn’t possible, enforcement action can be taken.

Both Cardiff and the Vale Councils have adopted a formal Data Protection Policy.

For further information contact:

Cardiff Council:
Room 249
County Hall
Cardiff CF10 4UW
Tel: 029 2087 2087
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Vale of Glamorgan Council:
The FOI Unit
Legal & Regulatory Services
Barry CF63 4RU
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Deprivation of Liberty Safeguards (DOLS)

Deprivation of Liberty Safeguards (DOLS)

The Mental Capacity Act Deprivation of Liberty Safeguards (MCA DoLS), which came into force on 1 April 2009, provides a legal framework to ensure people are deprived of their liberty only when there is no other way to care for them or safely provide treatment. They were introduced as an amendment under the Mental Health Act 2007 but form part of the Mental Capacity Act.

These amendments introduce new responsibilities and legal duties on registered care homes and hospital in-patient services. DOLS also impose new requirements of local
authorities and Local Health Boards.

The MCA DOL safeguards apply to anyone:

  • aged 18 and over
  • who suffers from a mental disorder or disability of the mind – such as dementia or a profound learning disability
  • who lacks the capacity to give informed consent to the arrangements made for their care and / or treatment and
  • for whom deprivation of liberty (within the meaning of Article 5 of the ECHR) is considered after an independent assessment to be the “least restrictive” way of achieving their “Best Interests”.

The Deprivation of Liberty Safeguards concern individuals in hospitals and care homes (i.e. registered accommodation) who may need to be deprived of their liberty in order to protect them from serious harm. DOLS do not apply if a person is detained in hospital under the Mental Health Act 1983. However, they do apply if a person is subject to Section 7 of the Mental Health Act (Guardianship).

Care homes and hospitals have responsibility for preventing unnecessary deprivations of liberty. They must also recognise if a person is deprived of their liberty or if a deprivation of liberty is likely to happen. Like other health and care providers, care homes also have a responsibility to promote the independence of each person in their care and to support them in their choices.

Care homes will need to provide additional support to residents who lack the mental capacity to make a decision for themselves. Care homes and hospitals are responsible for
granting themselves an ‘urgent authorisation’ and applying to the relevant local authority or primary care trust for a ‘standard authorisation’ under DOLS.

For further information contact:

Cardiff and Vale MCA/DoLS Team
Dock Office
Subway Road
Barry CF63 4RT
Tel: 01446 704849 / 704722
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Hafal's Criminal Justice Link Service

Hafal's Criminal Justice Link Service

The Criminal Justice Link Service is aimed at anyone with a serious mental health issue who is involved with criminal justice agencies. Criminal Justice Link (CJL) Officers provide a link between people in the Criminal Justice System who have a mental health need, and statutory or voluntary services such as housing, health & social care and drug and alcohol agencies, ensuring that they maintain engagement with services.

The service aims to assist clients to engage with and maintain contact with services. The service is NOT a replacement for statutory arrangements such as the OAsys (Offender
Assessment System) assessment of the Care Plan Approach (CPA) but provides:

  • Advice and information - as part of a recovery plan, including: accommodation, physical wellbeing, work and occupation, training and education, finance and money, social, cultural and spiritual matters, parenting and caring responsibilities, medication for mental illness.
  • Short Term Support - Link workers support the relevant caseworkers and provide personal support to clients including: listening, advice, guidance, and support during transitional periods through the criminal justice system into prison and resettlement back into the community.
  • Short Term advocacy e.g help with making phone calls, help with introductions to support agencies and making initial attendance at appointments.
  • Signposting to additional support - directing individuals to appropriate support agencies.

The service can be assessed by the individual themselves, the support agency involved, a
family member etc.

For further information contact:

South Wales Link Service
Hafal
Suite C2, William Knox House
Britannic Way
Llandarcy
Neath SA10 6EL
Tel: 01792 816600
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Web: www.hafal.org/hafal/link.service.php

Hospital admissions- making sure staff know your child and how to complain!

Hospital admissions- making sure staff know your child and how to complain!

Too many people with a learning disability enjoy second rate healthcare and services- in the past many have been let down by the system and the 1000 lives project was established to help avoid any more unnecessary suffering. Health professionals and families have developed better ways of working that all agencies are now expected to adhere to. These aim to ensure that staff and others have a better understanding of an individuals' needs. likes and dislikes and are better equipped to support their recovery.

The Welsh Government have supported NHS trusts across Wales to develop the 1000 Lives  guide that aims to  improve general hospital care of patients who have a learning disability

Amongst the many practical tips within the guidance is the 'Traffic Light' approach. This is a snapshot of simple information that gives a clear picture of what is important to a person. Apart from essential information on health issues and medication the documentation allows you to inform any care provider things that are unique and important to your relative, this can include routines, things that cause distress or anxiety and the best ways to communicate and care for an individual.

  • Things you should know
  • Things You Must Know
  • Things that matter to me

Raising a concern about Health Services

Putting Things Right

The NHS in Wales aims to provide the very best care and treatment and it is important that we welcome comments and learn from people’s experiences, good or bad. The vast majority of people are happy with the service they receive.
 
Sometimes though, things might not go as well as expected. When that happens, we need to look at what went wrong so we can try to make it better. 
This information applies to you if:
  • You are not happy with care or treatment provided by or for the NHS in Wales
  • Or If you have any other concerns you think we should know about.

It tells you about the arrangements that will be in place from 1 April 2011 for looking into concerns.

 

What is a concern?

A concern is when you feel unhappy about any service provided by the NHS. By telling us about your concern, we can apologise to you, investigate and try to put things right. We will also learn lessons and improve services where they need to be better.

There are some things that we cannot deal with under the arrangements, such as:

  • Private healthcare or treatment (including private dental treatment)
  • A complaint which was made and investigated under the arrangements that were in place before 1 April 2011.

  

Who should I talk to about my concern?

If you feel able to do so, the best place to start is by talking to the staff who were involved with your care and treatment. They can try to sort out your concern immediately. If this doesn’t help or if you do not want to speak to staff who provided the service, then you can contact a member of the concerns team. 

For concerns about health services, you will need to contact your Local Health Board or the relevant NHS Trust.

If you have a concern about services that you have received from your General Practitioner (GP), Dentist, Pharmacist or Optician you should normally ask the practice to look into it for you, but if you prefer, you can ask your Local Health Board to do so.

You can contact the concerns team by:

  • Phoning
  • Emailing
  • Writing a letter
  • Faxing
  • Texting

If you need help to tell us about your concern, please let us know, or contact your local Community Health Council (CHC). Your local CHC provides a free and independent advocacy service, which is able to help patients or the people acting for them to raise a concern. The CHC will offer advice and support, including putting you in touch 
with specialist advocacy services if you need them. Your local CHC can be found below:

  

Who can raise a concern?

If this is something that has happened to you, you can raise the concern yourself. If you prefer, a carer, friend, relative or your local CHC can represent you, but you will be asked to agree to this.

How soon should I tell someone about my concern?

It is best to talk to someone about your concern as soon as possible after the problem happened but you can take up to 12 months to let us know. If a longer time has passed but there are good reasons for the delay, tell us anyway, as we may still be able to deal with your concern.

  

What happens next?

We will:

  • Let you know that we have received your concern within 2 working days (weekends and bank holidays not included);
  • At the same time, ask you if you have any particular needs that we should be aware of in dealing with your concern
  • Also ask you how much you want to be involved and get your consent to accessing your health records, if this is needed
  • Investigate your concern
  • As part of the investigation, decide with you whether we need to get specialist advice (such as a clinical opinion) or other independent help with sorting out your concern
  • Let you know what we have found and what we are going to do about it
  • In most cases, let you have a final reply within 30 working days of the date when we first received your concern (weekends and bank holidays not included). If we can’t reply to you in that time, we will give you the reasons why and let you know when you can expect a reply.

Some cases might need further investigation under the Redress arrangements. Redress is a range of actions that can be taken to resolve a concern where the organisation might have been at fault in causing some harm. It can include a written apology and explanation of what happened, an offer of treatment/rehabilitation to help relieve the problem and/or financial compensation. If Redress may apply to your concern, we will let you know what this means in more detail.

  

What you should do if you are still unhappy

If your concern has been looked at by us and you are still not happy with our response, you can contact the Public Services Ombudsman for Wales.

  • Public Services Ombudsman for Wales
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Independent Mental Capacity Advocate (IMCA)

Independent Mental Capacity Advocate (IMCA)

The Mental Capacity Act 2005 introduced the role of the independent mental capacity advocate (IMCA). IMCAs are a legal safeguard for people who lack the capacity to make
specific important decisions: including making decisions about where they live and about
serious medical treatment options. IMCAs are mainly instructed to represent people where
there is no one independent of services, such as a family member or friend, who is able to
represent the person.

The IMCA role is to support and represent the person in the decision-making process.
IMCAs may be instructed where local authorities or NHS bodies ‘propose to take or have taken, protective measures in relation to a person who lacks capacity to agree to one or more of the measures’ and where safeguarding adults proceedings have been instigated. People at risk may be supported by an IMCA regardless of any involvement of family or friends.

An IMCA must be instructed where:

  • There is a decision to be made regarding either serious medical treatment (SMT) or change of accommodation. AND
  • The person has no close family or friends to represent their views AND
  • The person has been deemed by the Decision Maker not to have capacity to make that decision in accordance with the assessment of capacity as defined in the Act

This can include:

  • People with dementia or mental ill health
  • People with learning disabilities
  • People with physical disabilities
  • People who have had a stroke
  • People with acquired brain injuries
  • People who are unconscious or in a coma

For further information contact:

John Kirkham, Area Manager
Mental Health Matters (Wales)
IMCA Wales
Unit 5 De Clare Business Park
Pontygwindy Road
Caerphilly CF83 2WA
Tel: 029 2088 8901
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Web: www.imcawales.org

Public Guardian

Public Guardian

The role of the Public Guardian is to protect people who lack capacity from abuse.

The Public Guardian, supported by the Office of the Public Guardian (OPG), helps protect people who lack capacity by:

  • Setting up and managing registers of: Lasting Powers of Attorney (LPA), Enduring Powers of Attorney (EPA), court orders that appoint Deputies; and supervising Deputies, working with other relevant organisations (for example, social services, if the person who lacks capacity is receiving social care);
  • Instructing Court of Protection (COP) Visitors to visit people who may lack mental capacity to make particular decisions and those who have formal powers to act on their behalf such as Deputies;
  • Receiving reports from Attorneys acting under LPAs and from Deputies; and providing reports to the COP, as requested, and dealing with cases where there are concerns raised about the way in which Attorneys or Deputies are carrying out their duties.

The Public Guardian is also personally responsible for the management and organisation of the OPG, including the use of public money and the way it manages its assets.

A separate Public Guardian Board scrutinises the work of the Public Guardian and then reports to the Lord Chancellor.

For further information contact:

Office of the Public Guardian
P O Box 15118
Birmingham B16 6GX
Tel: 0300 456 0300
Email:
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Web: www.publicguardian.gov.uk

Social Services & Wellbeing Act (Wales) 2014

Social Services & Wellbeing Act (Wales) 2014

In April 2016 the Social Services & Wellbeing Act (2014) became law. It replaces much existing legislation that impacts upon disabled people and carers by bringing much legislation together.

It should change the way that support is offered to carers and their families by placing them at the heart of decisions.

Rather than focus on the 'problem' and then try to find a 'fix', practitioners and people in receipt of services will be encouraged to identify what help they feel is required in order to achieve a desired outcome.

In this way resources should be better used, individuals have more of a say in how resources are used on their behalf and the focus will move on preventing an escalation of need rather than waiting until a situation becomes a crisis.

All parties should be encouraged to look to opportunities and support possibilities that exist within the community (or could be developed) rather than having to fit a limited range of rigid options.

A more comprehensive description can be found here while an easy to follow introduction can be found here and here. the latter is aimed at children and their services but is nonetheless relevant.

The aims of the act reflect those that we have argued for over two decades but as ever we await its introduction to assess how it is actually implemented.

The parents Federation and third sector organisations have been involved in consultations with Cardiff and the Vale of Glamorgan Councils' over how their approach to working with families is likely to change and shall continue feeding back parental views as the Act comes into force. It's Person centred approach offers much and many people may find opportunities increase as a direct consequence.

As with all new legislation there are many loose ends and some key issues will likely be subject to future legal challenges where definitions of statutory obligations are worked out. A critique of the act can be found here .

this page will be updated in the coming months but aims to be a basic introduction and signposting resource to families.

The Court of Protection

The Court of Protection

The Mental Capacity Act provides for a new Court of Protection to make decisions in relation to the property and affairs and healthcare and personal welfare of adults (and children in a few cases) who lack capacity. The Court also has the power to make declarations about whether someone has the capacity to make a particular decision.

The Court has the same powers, rights, privileges and authority in relation to mental
capacity matters as the High Court. It is a superior court of record and is able to set
precedents (set examples to follow in future cases).

The Court of Protection has the powers to:

  • decide whether a person has capacity to make a particular decision for themselves;
  • make declarations, decisions or orders on financial or welfare matters affecting people who lack capacity to make such decisions;
  • appoint deputies to make decisions for people lacking capacity to make those decisions;
  • decide whether a Lasting Power of Attorney (LPA) or an Enduring Power of Attorney (EPA) is valid; and remove deputies or attorneys who fail to carry out their duties,
  • and hear cases concerning objections to register an LPA orEPA and make decisions about whether or not an LPA or EPA is valid.

Details of the fees charged by the court, and the circumstances in which the fees may be waived or remitted, are available from the Office of the Public Guardian (OPG).

In reaching any decision, the Court must apply the statutory principles set out in the Mental Capacity Act. It must also make sure its decision is in the best interests of the person who lacks capacity.

For further information contact:

Office of the Public Guardian
P O Box 15118
Birmingham B16 6GX
Phone number: 0300 456 0300
Email:
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Web: www.publicguardian.gov.uk

The Criminal Justice System (CJS)

The Criminal Justice System (CJS)

The Criminal Justice System (CJS) is a public service, working across six agencies to deliver criminal justice. The core agencies are the police, the Crown Prosecution Service, the courts, the National Offender Management Service (which covers prisons and probation) and the Youth Justice Board (which oversees Youth Offending Teams).

Locally, Local Criminal Justice Boards (LCJBs) co-ordinate activity and share responsibility for delivering criminal justice in their area. These boards bring together the chief officers of the CJS agencies to co-ordinate activity and share responsibility for delivering criminal justice at a local level.

South Wales Criminal Justice Board
Fiona Harris
Secretary to the Board
Porthcawl Police Station
Porthcawl CF36 3DT
Tel: 01656 303504
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Web: www.cjsonline.gov.uk

The Freedom of Information (FOI) Act

The Freedom of Information (FOI) Act

The Freedom of Information Act 2000, came into force in January 2005. The FOI gives an
individual the right to ask any public body for all the information they have on any subject
they choose. Also, unless there’s a good reason, the organisation must provide the information within a month. The individual can also ask for all the personal information that is held on them.

The Freedom of Information Act applies to all ‘public authorities’ including: government
departments, local authorities and councils, health trusts, hospitals and doctors’ surgeries,
schools, colleges and universities, publicly funded museums, the police and other non-departmental public bodies, committees and advisory bodies.

Any person can make a request for information under the Act – there are no restrictions on age, nationality, or where a person lives. A person can ask for any information at all - but some information might be withheld to protect various interests which are allowed for by the Act. If this is case, the public authority must tell the individual why they have withheld information. If an individual asks for information about themselves, then the request will be handled under the Data Protection Act instead of the Freedom of Information Act.

Requests can be sent in writing (or email) to the public authority that you think holds the
information you want. Public authorities must comply with the request promptly, and should provide the information within 20 working days (around a month). If they need more time, they must write and tell the individual when they will answer, and why they need more time.

Most requests are free. A small amount maybe requested for making photocopies or postage. If the public authority thinks that it will cost them more than £450 (or £600 for a request to central government) to find the information and prepare it for release, then they can turn down the request. They might ask the individual to narrow down their request by being more specific in the information they are looking for.

When a request is made, the individual may ask for the the information be given to them in a particular form. However, a public authority may take into account the cost of supplying the information in this form before complying with your request. The individual should be able to receive the information in a permanent or summary form or by permission to inspect records containing the information. The individual may also be able to receive it in Braille, audio format, large type or translated into another language.

If the request for information is refused, the individual should first ask the public authority for an internal review of their decision. Someone in the authority who was not connected with the initial decision should carry out this review. If you have already done this, or the public authority refuses to review their decision, an appeal can be made to the independent Information Commissioner. He has the power to investigate the way the public authority handled your request and the answer they gave. If he agrees that they have wrongly withheld information, he can order them to disclose it to the individual.

Further information contact:

Information Commissioner’s Office - Wales
2nd Floor, Churchill House
Churchill Way
Cardiff CF10 2HH
Tel: 029 2067 8400
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Web: www.ico.gov.uk

The Information Commissioners Office (ICO)

The Information Commissioners Office (ICO)

The Information Commissioner’s Office is the UK’s independent authority set up to uphold
information rights in the public interest, promoting openness by public bodies and data
privacy for individuals.

They can help with:

  • finding out what personal information is held about an individual
  • accessing information about a public body
  • prevent unwanted sales calls and spam emails
  • finding out information about the environment

For further information contact:

Information Commissioner’s Office – Wales
2nd Floor Churchill House
Churchill Way
Cardiff CF10 2HH
Tel: 029 2067 8400
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Web: www.ico.gov.uk
www.dataprotection.gov.uk

The Information Tribunal

The Information Tribunal

If there is disagreement with the way the Information Commissioner has responded to the
appeal, a person may appeal against it. This will be handled by the Information Tribunal. This is strictly for use when there is a dispute on the Information Commissioner´s response and not the public authority or any other party´s acts.

For further information contact:

Information Tribunal
Arnhem House Support Centre
PO BOX 6987
Leicester
Leicestershire LE1 6ZX
Tel: 0845 600 0877

Further information can also be obtained from the following websites:

www.direct.gov.uk
www.ico.gov.uk


Both Cardiff and the Vale Councils have a commitment to disclose information unless
it can be clearly shown that it is in the public interest not to do so (e.g. because such
disclosure would cause substantial harm or breach of confidentiality).

For further information contact:

Cardiff:
Information Management Services
Room CY4B
County Hall
Cardiff CF10 4UW
Tel: 029 2087 2087
Email: This email address is being protected from spambots. You need JavaScript enabled to view it.

Vale of Glamorgan:
The FOI Unit
Legal & Regulatory Services
Vale of Glamorgan Council
Barry CF63 4RU
Email: This email address is being protected from spambots. You need JavaScript enabled to view it.

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