Hi there @caseslot
I’m one of the information and advice officers from the learning disability helpline. A lot of people, including professionals, seem to have confusion over the detail of the Mental Capacity Act and we often hear about this from families and carers. The Mental Capacity Act is a useful piece of law which is in place to protect vulnerable adults like your son around decision making. People with a learning disability have the same legal rights and freedoms as any other adult and no one has an automatic right to make decisions on behalf of a person with a learning disability.
It’s important to remember that there is no ‘blanket assessment’ of someone’s mental capacity, it applies to a particular decision at a particular time. So your son’s social worker is right in saying that he needs a different mental capacity assessment around different decisions to be made, especially if these relate to big decisions like his care and support, or managing his finances.
There are four parts to a mental capacity test and failure on any one part indicates a lack of capacity to make the specific decision in question at the particular time the decision needs to be made. To have capacity to make a decision the person must be able to:
- Understand the information relevant to the decision (including the reasonably foreseeable consequence of making or not making the decision
- Retain that information (long enough to make the decision)
- Use or weigh the information (as part of the decision making process)
- Communicate the decision (in any recognisable way)
The test of capacity may be carried out by anyone – you might do it every day in deciding what your son will wear or have for breakfast. The Mental Capacity Act does not name any professional group with special authority to apply the test, and there are no specifically trained assessors that can be called in. It is for organisations to create their own policies about how staff do the assessment as long as it is in accordance with the Act.
For any health or social care decision the assessment should be carried out by the person proposing the decision, or with the authority to make such a decision. So it makes sense that your son’s social worker carries out the assessment regarding his respite care, and if he or she is enlisting the support of the speech therapist it might be to ensure that his communication needs are met. Some organisations require a minimum of two assessors for assessments that have more serious consequences.
The decision about whether or not your son has the capacity to appoint someone to act on his behalf to manage his affairs is not a health and social care issue. So there may be someone better placed to assess his capacity to make this decision – some solicitors are able to do this. Remember the decision is not about whether he can manage his own finances, but about whether he understands the idea of someone acting on his behalf. If he has the capacity to make this decision at the time of application then you may want to consider lasting power of attorney rather than deputyship.
There is more information here: https://www.mencap.org.uk/advice-and-support/mental-capacity-act
The MCA Code of practice is on this link: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/497253/Mental-capacity-act-code-of-practice.pdf Chapter 4 is about mental capacity assessments.
Finally, if you disagree with a mental capacity assessment you do have the right to challenge it.
I hope that helps and I hope that your son can be supported to make his own choices as much as possible.
All the best,