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Dementia Care Training and the Law

DemFor those of us who work alongside people with cognitive difficulties – including those with dementia – a working knowledge of the Mental Capacity Act 2005, and the confidence to use this knowledge, is essential and empowering.

The Mental Capacity Act is a thread woven through other laws and regulations including the CQC’s fundamental standards, the Care Act 2014 and safeguarding policy. It enables people to plan ahead (Lasting Powers of Attorney and Advance Decisions), and provides a framework to follow when making ‘best interest’ decisions.

This is a practical law and the supporting Code of Practice translates legal ‘blurb’ into useful guidance that all of us working with those who have capacity issues should apply.

The principles set out at the very start of the act are the cornerstone of good practice:

1. The presumption of mental capacity

The Code of the Practice states that “..every adult has the right to make their own decisions – unless there is proof that they lack the capacity to make a particular decision when it needs to be made”(p20). Care records that simply say “Mrs Smith lacks mental capacity” sum up the wrong approach. Mental capacity is time and issue specific and Mrs Smith’s ability to take decisions may depend on the time of day, the type of decision, and the surrounding environment. How would you feel if your capacity was summed up in one short sentence?

2. Take all practical steps to support someone to make a decision

Don’t rush to declare that someone lacks capacity. What steps can you take to present the information in a way that supports the individual? This can range from photographs or videos of potential care homes to simply holding up different clothing options. Don’t let a communication board go to waste (I have seen many of these out of reach of the person who needs to use them), and don’t rush.

3. An unwise decision does not mean that someone lacks capacity

Different things matter to different people. You may be concerned that George is walking about without his frame and putting himself at unnecessary risk of falls, but if he has the mental capacity to decide that’s how he wants to walk about, and accepts the risks, that is his choice. You can document this in his care plan and make the environment as safe as possible, but he should be free to walk without his frame if he chooses to.

4. Any act or decision on behalf of someone who lacks capacity should be in their best interests

This means weighing up the factors involved in the decision – think of balancing the pros and cons on either side of a set of scales – and arriving at a decision that is in the individual’s best interests, not yours. The Code of Practice provides a checklist, and the more significant the decision, the more formal the decision making process should be.

5. Before you do an act or make a decision on behalf of someone, is it the least restrictive option?

Imagine for a moment that you are at home: a carer visits and puts a table in front of you whilst you watch TV. Very helpful, you may think, but what if it is intended to stop you getting up and possibly falling over? Is this the least restrictive way of trying to prevent a fall? Is it really in your best interests to be trapped by a table?

Care providers who have embedded these principles in the work of staff members and volunteers see these principles applied thoughtfully for the lasting benefit of service users: treating someone you care for as you yourself would like to be treated and you cannot avoid them.

www.qualitysolicitors.com/moore-tibbits

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