07th October 2016

Does The Mental Capacity Act Mean We Must Always Let Someone Take Terrible Risks?

Jim has a fairly severe learning disability . He can only say a few words; his family often understand what he means, but other people usually don’t. His mum is getting older and her health isn’t great: she has reluctantly agreed that she can’t continue as his main carer, so he’s come to live in a supported living setting.

Jim’s Lorries

Jim’s mum understands him better than anyone. She has explained to staff how he gets frustrated when people can’t understand what he wants, and written a list of what many of his sounds and actions mean. She’s also explained that he loves to look at lorries when he gets frustrated or anxious, and where she takes him to see them. She has sent with him some DVDs of lorries (produced by the various companies for advertising purposes), and his model lorries, which he’s been given over the years for birthday presents.

Jim and the Police

His mum came to visit, and was horrified to find Jim being brought back in a police car. He’d been picked up, for the second time in a week, walking along the motorway hard shoulder. The police were worried that he could easily get killed, or cause a serious accident.

The paid carers said, ‘It’s “his life, his choice”, so if he chooses to walk along the motorway we can’t stop him’.

The Mental Capacity Act

They showed a basic misunderstanding of the MCA.

Yes, we can live as we choose, and, if there’s no reason to doubt our mental capacity, we can make an unwise decision. But there is good reason to question Jim’s mental capacity to decide to walk along the motorway. And it quickly becomes clear that Jim lacks the mental capacity to understand road safety information, remember it, or use it to decide where to walk.

The Way Forward

Jim’s carers, in consultation with his relatives and perhaps learning disability specialists, must make a best interests decision. They must also consider, since stopping him would be a restraint, whether it would be proportionate to the likelihood of harm if they don’t, and the seriousness of that harm.

His mum learned from him that he’d get upset when staff didn’t know what he liked to eat and drink, so he’d gone looking for lorries.

The Least Restrictive Option to Keep Jim Safe

It’s clearly in Jim’s best interests to stop him putting himself at such risk.

Staff must record why they think he lacks capacity for this, and then consult with those who know him best, to find ways to stop him getting so anxious and frustrated.

Jim’s staff team are learning what brings pleasure to his life, and his care plan outlines how to do everything possible to avoid frustrating him. And now they know to use his love of lorries both to prevent his anxiety where they can, and to enable him to be happy.

*All information is correct at the time of publishing

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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