Putting the MCA at the heart of children’s services

Related Sector: Health & Social Care

The Mental Capacity Act 2005 and Children’s Social Care - Is it a storm waiting to happen?

With a little over one year until the implementation of the Liberty Protection Safeguards is scheduled to come into force, is it time to turn our attention to and re focus on the Mental Capacity Act 2005 in order to prepare our children’s social work practitioners for the road ahead?

Introduction

The Mental Capacity Act 2005 has been in force since 2007 and applies to England and Wales. It applies in part to children and young people aged 16 and 17 and in full for adults. The primary purpose of the Act is to empower, promote, support but also safeguard decision making within a legal framework. The Mental Capacity (Amendment) Act 2019 will come into force in April 2022 which will bring in the Liberty Protection Safeguards. All children’s social care practitioners working with or caring for young people of 16/17 must comply with the Act and therefore understanding how to apply it to practice is essential.

Context

With the landmark decision in September 2019 in the matter of Re D (A Child) (2019) UKSC 42, which decided parental responsibility cannot be used to authorise the deprivation of liberty young people of 16 or 17 who lack capacity to consent to the arrangements for their care and treatment which amount to a deprivation of liberty, came significant implications for both commissioners and providers of health and social care for that age group.

Sue Inker, Lawyer and Subject Matter Expert in MCA, discussed the following:

• Has enough been done to support practitioners for handling cases which may amount to a deprivation of liberty?
• Why is this so important?
• What can you do to support your practitioners now and for the road ahead to 2022?

Has enough been done to support practitioners for handling cases which may amount to a deprivation of liberty?

Two significant court rulings, Re D being one, have had profound implications for children’s services and have highlighted the need for children’s services to get to grips with the Mental Capacity Act 2005, the concept of deprivation of liberty and how to apply to the Court of Protection for authorisation.

But the question remains has enough been done to support practitioners in relation to knowledge around the Mental Capacity Act 2005 and how to handle the cases? Are practitioners prepared for the road ahead ?

Why is this so important ?

Local authorities are public authorities and one of the key principles of public law is to be lawful, to obey the law.

The Human Rights Act 1998 created a duty on public authorities not to act in any way that is incompatible with the human rights of the people it serves.

Those rights include the right to autonomy and self-determination, and under Article 5 to liberty and security of person for 16 and 17 year olds.

Where there are issues around the mental capacity of the young person to consent to their arrangements for care and treatment, and the parents with parental responsibility are unable to consent on their behalf both these rights need protecting by the appropriate legal framework.

What can you do to support your practitioners now and for the road ahead to 2022?

Bond Solon have created a one day course especially for children’s social work practitioners which will look at an overview of the Mental Capacity Act 2005 and the upcoming amendment. The course will look at the ethos of the Act around empowerment and supported decision making, how to assess capacity and the consideration of the concept of best interests. Reference will be made to the continuum of how the Act provides a legal defence for professionals for routine decisions or interventions to provide care and treatment for young people who lack capacity, through to interventions that constitute restraint, moving through to interventions that go beyond “mere” restraint to a deprivation of liberty and how to apply the appropriate legal framework.

Author: Sue Inker, Lawyer and Subject Matter Expert in MCA
This article was first published on Monday 1^st February 2021.

 

MCA and Young People

This one-day course is aimed at social workers who work with young people of 16/17 to gain an overview of the Mental Capacity Act 2005 and to enable them to integrate it into day to day practice. Find out more about this course here.