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02nd December 2016

Enabling People to Be at The Heart of Decision-Making

Enabling People to Be at The Heart of Decision-Making

A senior judge in the Court of Protection has just brought out guidance, on how to enable people who might lack capacity to take part in the Court cases about them.  I’m sure you’re thinking that this has nothing to do with your day to day work with vulnerable people. But don’t switch off!

It is a delight to see such great efforts being made, in the intimidating environment of a Court of law, to make it easier to ‘hear the voice of the person’ at the centre of it all.

This guidance gives useful pointers for any of us to use, when we are trying to find out the wishes and feelings of people who lack mental capacity to make some decisions for themselves.

Best interests decision-making

I’ve written before about how important it is to know what the person might have decided with capacity (particularly important with older people, whose relatives we must cherish for their ability to tell us about this). It’s also essential to learn as much as you can about the individual’s current wishes and feelings, loves and hates, fears and enjoyments.

If we don’t place the person squarely at the centre of the process, not only will our decisions risk losing protection from liability (because we haven’t followed the MCA which says we must include the person as far as possible in the decision-making), but we won’t stand a chance of making a good best interests decision.

Putting theory into practice

The Mental Capacity Act code of practice has a whole chapter on ways we can help and support people to make their own decisions, and it’s a great resource. But I decided to adapt the Judge’s guidance for use in health and social care , particularly his check-list of the practical things you can do to help someone to be at the heart of making decisions about them.

One thing I’ve altered is that the Court of Protection calls the person who might lack mental capacity ‘P’ – standing for ‘Person.’ I don’t like that much, so I’m using more general words.

The person’s wishes and feelings

The guidance about people involved in Court cases highlights that, for them to be placed at the centre of the proceedings, their wishes and feelings must be known as far as possible.

And it creates a checklist, adapted here, of ways you might achieve that, starting by asking yourself the following questions:

  • How well can the person communicate? If they have difficulties explaining their views and feelings, how might their communication be enhanced. By Speech and Language Therapy (SALT) input, communication aids etc.?
  • Has everything been done that could enhance the person’s ability to tell us their thoughts and opinions? This might be as simple as a new hearing-aid (or new battery for the existing one); or cleaning their glasses so that they can see better. Or it might mean improving staff knowledge of sign-language or Makaton. Also, the person may benefit from further communication training, such as learning to use a communication board.

If there might be more that should be done, tell the commissioner of their service, or other professionals. People have the right to be understood and ‘heard’, so we must all pull together to improve communication if it can be improved.

  • What is the best place for the person thinking about a decision? It might not be in the office, with the phone ringing and impersonal furniture; is there a quieter, cosier place, where the person would be more relaxed and less distracted? Might the person be put at ease by having someone there to support them, perhaps a relative or friend?

As the code of practice points out, though, ‘some people might find this intrusive and it could increase their anxiety or affect their ability to make a free choice.’ And you must consider the person’s right to confidentiality: some decisions might be ones the person may not want other people to know about.

  • How can you best explain to the person the nature of the decision facing them? This is quite a challenge: we need, ourselves, to know quite a lot about the different options, to be able to explain them in simple language. We need to keep it simple, be careful not to give more detail than is necessary to understand what is involved, and keep to the point!  A person who might find it difficult to concentrate will find it impossible if we jump from one topic to another.

Getting the basics sorted out

I’m impressed by the practical level of detail in this guidance. The list, below, is a useful starting point. Whenever you want to facilitate a person to do something they want to do, whether have their opinion heard in court or go on holiday:

  • Who will accompany the person and support them throughout, if needed?
  • What time will they need to arrive and how does this fit with their routine(such as the taking of medication)and any support required?
  • How will they physically access the places they are going to?
  • What arrangements will be made for personal care if required?
  • Are there accessible toilet facilities if needed?
  • Will the person need a private or quiet space for a break, and how can this be arranged?
  • Does the person have any further individual needs that should be considered in advance?

A challenge

If it can be made possible, with a little forethought, for someone to be part of their own court case, then we should accept the challenge to enable people who may lack mental capacity to do lots of other things too.

Do tell me (suitably anonymised) about the practical ways you have enabled someone to do something that everyone thought impossible for them!  I’ll write about them, here and on the National Mental Capacity Forum web-site.


1. MCA Code of Practice (see chapter 3)

2. Mr. Justice Charles (London, November 2016) ‘Facilitating participation of ‘P’ and vulnerable persons in Court of Protection proceedings’

*All information is correct at the time of publishing. Use of this material is subject to your acceptance of our terms and conditions.

Rachel Griffiths

Mental Capacity and Human Rights Specialist

Rachel has huge experience and knowledge in the area of Mental Capacity, including how to recognise deprivation of liberty, when and how to assess capacity and how to go about making decisions in someone’s best interests. She is nationally recognised as a leading voice with regards to Mental Capacity, and is involved with setting the agenda as well as providing advice and information about Mental Capacity. The information, guidance and support that Rachel provides helps to ensure that the way people work is within the law and recognises that the person using services is always at the centre of any decisions made. Read more

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