Mental Capacity, Rights and Decision Making (SEND)
Information and resources on Mental Capacity and Decision Making for young people and their parents and carers.
Mencap have produced a handy resource pack for family carers about decision making for their relatives with profound and multiple learning difficulties. Family carers have said this is an area they would like to know more about.
The guide covers essential information such as:
- The Mental Capacity Act.
- Helping people to be involved in decision-making.
- Who can make decisions if a relative cannot.
- The seven factors a decision maker must consider (REFLECT).
- Following the law and complaints procedures.
- Tools and resources to help you make decisions.
- Healthcare decisions and annual heath checks.
- Lots of useful links throughout and terms you may come across.
Deputyship
A child becomes a young person when they are no longer compulsory school age (end of June in the year they turn 16). Then the young person has rights to make decisions for themselves; for example, about their education. Their parents should still be included in the decision, and will have parental responsibility until a young person is 18.
If the young person does not have mental capacity to make decisions, their rights can pass on to a person appointed as a ‘deputy’ through a court, or to professionals such as the Local Authority. If when a young people reaches 18, they still do not have capacity to make decisions in relation to things such as education, living arrangements, care and money. Another person can apply for a Deputyship Order through the Court of Protection. That person can then make decisions on behalf of the young person.
It should always be assumed that a young person has capacity until proven otherwise. Capacity can change. A young person may have capacity to make more simple decisions but not complex ones. An assessment can take place to formally agree whether someone has capacity or not. This assessment can be completed by a GP or medical practitioner, psychiatrist, mental health professional, psychologist, nurse or occupational therapist.
Deputyship Order
When a young person aged 18 or over does not have capacity to make decisions in relation to things such as education, living arrangements, care and money, another person can apply for a Deputyship Order through the Court of Protection. That person can then make decisions on behalf of the young person.
There are two types of Deputyship:
- Property and Affairs
- Health and Personal Welfare
To become a Deputy, that person must be over 18 and should know the young person well, have regular contact with them and understand their wishes. This is usually a parent but could be a sibling or another appropriate person. It is best to apply for a Deputyship Order when the young person is 16 or 17 so the order is in place when they become 18 and there is no longer parental responsibility.
More information on Deputyship can be found on the gov.uk website at Deputies: make decisions for someone who lacks capacity.
Lasting Power of Attorney
A young person could choose someone to act on their behalf as Attorney. This person will act in the young person’s best interest. The young person must have capacity in order to appoint an Attorney and has control over the powers given to their Attorney.
A young person’s right to reside separately from their parents depends on a number of factors such as:
- A young person’s age
- Mental capacity to make a decision regarding their residence
- Whether or not they are looked after by the local authority
There is no one rule which covers everyone and the options and outcomes vary depending on circumstances. More information on Rights of young people to stay in county can be found on our Living Independently page.
The Right to Participate website is part of Disability Rights UK’s Right to Participate project. The project aims to increase awareness of the Equality Act, especially the ways it can protect disabled people from discrimination in everyday situations.
The website has some very useful resources such as template complaint letters covering topics such as accessibility problems while out and about and education and employment issues including reasonable adjustments, barriers to interviews and reporting discrimination.
DisDAT | Disability distress assessment tool (DisDAT)
A tool to use to monitor and spot the signs of pain and discomfort. Typically used by professionals.
Mencap is the leading voice of learning disability and a charity. Their website features lots of information, guides and video content for those with learning difficulties and their parents and carers.
Mental Capacity Act 2005 | legislation.gov.uk
The Mental Capacity Act of 2005.
