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Mental Capacity in Practice

The Mental Capacity Act in practice.

Care in the home: young lady helping older woman with walking sticks

Occupational Therapy and Mental Capacity

In Terry Pratchett’s Going Postal, we meet the main character Moist von Lipwig as he tries to dig his way out of prison using a broken spoon. Just when he thinks he’s about to reach freedom, von Lipwig discovers that it isn’t the end at all, and that someone has hidden a brand-new spoon for him inside the wall in order that he carry on digging. This is because Lord Vetinari likes to provide ‘Occupational Therapy’ to all his inmates!

While Terry Pratchett’s wonderful satire doesn’t paint Occupational Therapy (OT) in a wholly positive light, though very entertaining, it does give some small insight into the sort of ‘purposeful activity’ that can be used to aid recovery, support identity and help people maintain cognitive and physical function.

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Elderly man with head in his hands

Mental Capacity: Is choice the same as freedom?

If an adult in care can only select from a limited number of closed options, then do they really have what we might describe as ‘choice’?

Lucy Series argues that in many ways, we have come on a long way from the outmoded restrictive institutions of old. However, there are many new modern-age deprivations that have risen in their place. For example, many care homes will enforce a certain structure to the day in order to enable the cost-effective provision of meals, activities, and personal care support. In doing so, they are restricting natural choices and freedoms, while also enacting a system of close monitoring.

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Contact meeting between relevant person and their representative

The rule 1.2 representative process explained

In Mental Capacity law, a rule 1.2 representative (or ‘1.2 rep’) performs a similar role to a Relevant Person’s Representative (RPR), but in a community setting.

The process for assigning a 1.2 rep is slightly different to that of an RPR. This is because community DoLS authorisations are authorised through the Court of Protection, and not by the Local Authority DoLS office, as is the case in hospital and care home settings.  And so a 1.2 rep will be identified and allocated through this process by those applying and agreed by the Court.

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Kettle being heated on stove

Mental Capacity and the complex nature of decision-making

It’s estimated that the average person makes around 35,000 decisions every single day. While this may seem a huge number, many of these are ‘micro decisions’ that we make without even thinking; the sorts of things that might have required great effort during childhood, but which in adulthood require barely any conscious effort at all.

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Retaining information: man looking out of window

When should an RPR make a section 21a application to the Court of Protection?

The role of a Relevant Person’s Representative (RPR) is to be an independent and impartial voice working on behalf of the relevant person under a Deprivation of Liberty Safeguards (DoLS) authorisation. They are there to support inclusion, knowledge, rights and promote the person’s voice within the DoLS process, performing a vital safeguarding role to help monitor its application. As part of this role, an RPR should raise a Section 21a challenge to the Court of Protection if the person they are representing voices an objection to DoLS.

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Close up of an elderly woman sat in a cafe

Mental capacity two stage test: Is a formal diagnosis required?

In previous blogs, we have explored some of the many different elements required to assess mental capacity for a specific decision. This brings us then to the two stage test, which is composed of the functional and diagnostic steps that are then bound together as part of the causative nexus (the justifiable link).

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