London ASW Leads Network September 5th 2006

1. LondonASW Leads NetworkSeptember 5th 2006 Greg Slay ADSS lead on Mental Capacity Act 2005

2. My presentation will cover: • An outline of the Mental Capacity Act implementation issues, for all to consider • The overlap with Adult Protection work – ‘everybody’s business’ • How we can help each other in answering the unanswered questions!

3. A sense of perspective: • around 840,000 people with dementia by 2010 (Alzheimer’s Society 2004 report); • 145,000 people with severe and profound learning disability (Valuing People, Department of Health, 2001); • 10-15 people per 100,000 suffer a severe head injury every year (Department of Health report, 1991); • approx. 1 – 2 million people, aged 16 years or above, who may lack capacity per annum!

4. Mental Capacity Act 2005 - key components • The Mental Capacity Act has, as a basic tenet, the presumption of capacity • We are expected to uphold that presumption in our professional practice • Where the capacity of service users to make decisions is in question, social workers and social care staff (and others) will be expected to have the skills to assess incapacity

5. Mental Capacity Act 2005 - basic test Anyone, aged 16+, is unable to make a decision for him/herself, if unable to: • understand the information relevant to the decision; • retain that information; • use or weigh up that decision in relation to making the decision needed (note: decision-specific) OR • to communicate his/her decision (through any of various methods)

6. Mental Capacity Act 2005 - key components • No one, aged 16+,will in future be able to be labelled as ‘incapable’ as a result of a medical condition or diagnosis • People with learning disability or early stage dementia will be expected to have capacity to make decisions although help may be needed with more complex issues • We will be expected to be clear on the evidence we have used to establish incapacity – important for the IMCA Service (more later!)

7. Mental Capacity Act 2005 - key components • Where a person is assessed as lacking capacity, decisions and actions will need to be done by others in the person’s ‘best interests’ • S.4 of the Act provides a checklist for this; • The draft Code of Practice also provides guidance

8. Mental Capacity Act 2005 - best interests actions We cannot be seen to be making subjective decisions about ‘best interests’. We need to consider: • will the person have capacity at some time, and when will that be? • can we improve the person’s ability to participate in decision-making? • the views of others, including relatives, carers, paid carers, about any specific decision proposed • any directions of a donee of a Lasting Power of Attorney already granted by the person; • any direction of the Court of Protection

9. Mental Capacity Act 2005 - what else is new? • The Public Guardianship Office disappears; • PGO Nominated Officers – currently responsible for the Court of Protection’s administrative functions – will no longer exist; • the Court of Protection will deal with all matters requiring a Court decision such as whether to appoint a Deputy, who that Deputy should be; • there will be a new Public Guardian (Richard Brook) with statutory powers of regulation and inspection; • the Public Guardian will manage the ‘Office of the Public Guardian’ and will in future be the registration authority for current EPAs and future LPAs

10. Mental Capacity Act 2005 - what else is new? • EPAs and LPAs: existing EPAs wil have transitional arrangements (not yet confirmed) but after April 2007 only LPAs will be issued • there will be a ‘finance’ LPA and a separate ‘health and welfare’ LPA • the Office of the Public Guardian will (proactively) supervise all Deputies appointed by the Court – as well as attorneys acting under an LPA or EPA

11. Mental Capacity Act 2005 - the IMCA Service: yes, what’s happening? • an Independent Mental Capacity Advocate Service, across England (and Wales) • the whole service will be in place by next April • it will ONLY provide advocacy for people who lack capacity AND who have no relatives or friends to support them • the Government estimates there are about 10,500 decisions (600 in Wales) are taken each year about care home moves for people in this category • the remaining decisions relate to serious medical treatment decisions

12. Mental Capacity Act 2005 - the IMCA Service • the IMCA Service will be independent of local authorities – but may be commissioned by them in conjunction with PCTs • local authorities will be the bankers – weighted allocations have already been announced for commissioning purposes • the IMCA Service will work across service user groups • advocates will be expected to have POVA and CRB clearance, and be professionally qualified • the IMCA Service will be proactive in providing advocacy

13. Mental Capacity Act 2005 - resources already available and where they are www.adss.org.uk check this out for various ADSS guidance papers and/or e-mail me direct www.dh.gov.uk check this out for access to the guidance on setting up a Local Implementation Network; using the Best Practice Tool for assessing your state of organisational readiness; and the dedicated IMCA Service pages

14. Mental Capacity Act 2005 - what you will need to be involved with • providing health and welfare reports to the Court of Protection • involving the IMCA Service in care management reviews – particularly around care home moves or serious medical treatment decisions • thinking about adult protection in the round – it’s not just about physical abuse or financial abuse per se – whilst abusers who lack capacity and have no relatives will also be able to access the IMCA Service!

15. Mental Capacity Act 2005 - what else you will be involved with • existing receivers appointed under Part 7 Mental Health Act 1983 will become Deputies under the 2005 Act – and will continue with their current workload as well • supporting the new Court of Protection in appointing a local authority as a Deputy to act on its behalf – probably around 2 Deputyships per local authority per annum • reviewing existing assessment and care management practice systems, including risk assessment arrangements

16. Mental Capacity Act 2005 - what else you will be involved with • scoping training requirements for your staff • integrating mental capacity thinking into adult protection training • considering who in practice will do the deputyship work required of the Court of Protection – could it be advanced adult protection practitioners? • reflecting on how to demonstrate exemplar practice to the public and to other agencies • using your organisation’s internet site to promote awareness of the Mental Capacity Act

17. Mental Capacity Act 2005The ADSS position about the Act and how it’s involved • We recognised and have been celebrating a major step forward in the rights of people who hitherto have had only limited or no rights at all • We anticipate increasing demands for organisations – particularly where we need to intervene with people who lack capacity

18. Mental Capacity Act 2005The ADSS position about the Act and how it’s involved • Representation on national Programme Implementation Board (together with the Local Government Association) • involvement with the national Stakeholder/Communications Group • workforce training strategy development – for a whole range of people with different skills – helping to design the guidance on organisational self-assessment, guidance on IMCA Service commissioning and so on • discussions on workload issues for the Court of Protection • discussions on supervision arrangements by the new Office of the Public Guardian

19. Mental Capacity Act 2005The ADSS position about the Act and how it’s involved • Distributing ‘news feeds’ through ADSS Networks on Adult Protection, Mental Health, Older People, Learning Disabilities • Using ADSS e-Bulletins to reach out to all ADSS members and social services authorities • Keeping in contact with ADSS Cymru and the Wales Assembly Government on Wales-related issues • Co-ordinating responses to formal consultations issued by the Department of Constitutional Affairs and/or Department of Health on behalf of local social services authorities

20. We will need to get the bureaucracy right if the Mental Capacity Act is not to clog up our organisations!

21. Mental Capacity Act 2005- specific questions for you to consider • Do you know the name of your local ‘lead’ officer? • How is your multi-agency local implementation network getting on with scoping the work needed to aid implementation? • Have you scoped your training requirements and do you have a training strategy yet worked out? • What about core training after 2007-08? • Who is commissioning the IMCA Service? • Is anyone working on the care management systems that need changing –and what about the interface with adult protection procedures, let alone AP/Safeguarding Adults training? • Have you made contact with your regional CSIP Development Centre lead person? Do you know what help you might need from there?

22. Mental Capacity Act 2005 - specific questions for you to consider • What infrastructure will enable the most efficient access to information for the IMCA Service in your organisation? • What infrastructure will enable the most efficient interface with the new Court of Protection (and its wider responsibilities) – as well as sustain your current receivership work? Could mental health NHS Trusts get support from your receivership unit? What happens if your receivership unit is out-sourced? • If the Government amends the Mental Health Act, as it keeps saying it will, do you need at least to be thinking about the amendments to incorporate the Bournewood proposals? Is someone else in your organisation dealing with this and do you know whom?

23. Mental Capacity Act 2005- my contact details Greg Slay Practice Development Manager – Mental Health (ADSS MCA 2005 Implementation Lead) West Sussex County Council Adults’ Services County Hall Chichester West Sussex PO19 1QT Tel. 01243 777100 X 52020 greg.slay@westsussex.gov.uk