When you reach the age of 16, you can make your own decisions. The law gives rights to young people who are over 16 and no longer of compulsory school age. In the law and guidance these people are called ‘young people’. Young people can make decisions in their own right about the support they receive. This includes taking control of their own EHC plan if they are able to. This page gives information about your rights and the laws that help make sure you are supported.
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- Mental capacityThe person-centred approach
Mental capacity is the ability to make decisions. The Mental Capacity Act 2005 applies to everyone aged 16 or over.
What is meant by ‘capacity’?
Capacity refers to a person’s ability to make a particular decision at a particular time. The Mental Capacity Act 2005 says that a person’s capacity to make a decision may fluctuate based on their wellbeing at a particular time. If there is doubt that a person has ‘capacity’ to make a particular decision at a particular time, a mental capacity assessment will be undertaken by either a health or social care practitioner, depending upon the nature of the decision.
The Mental Capacity Act 2005 sets out five key principles in determining whether someone has ‘capacity’ to make a decision or not:
- It should be assumed that everyone can make their own decisions unless it is proved otherwise. No one should assume that a person can’t make a decision because they have special educational needs or a disability.
- Do not treat people as incapable of making a decision unless all practical steps have been tried to help them. A person should have all the help and support possible to make and communicate their decision, before it is decided that they are unable to do so. If appropriate, this might mean delaying the decision.
- A person should not be treated as lacking capacity just because they make an ‘unwise decision.’ Disable people and those with special educational needs have the right to take risks if they understand the consequences of the decision; it is their decision to make.
- Actions or decision carried out on behalf of someone who lacks capacity must be in their ‘best interests.’ The Mental Capacity Act sets out a process to ensure that a decision made for people, who have been assessed as lacking capacity is made in their best interests. ‘Best interests’ means knowing about a person’s values, wishes, aspirations, and what you think they would choose if they did not lack ‘capacity.’ This includes decisions made by families as well as social workers and other health/care professionals.
- Actions or decisions made on behalf of someone who lacks ‘capacity’ should limit their rights as little as possible.
A good example might be if a person was in a coma and a decision needed to be made about their care or treatment. A person must be able to: understand/retain/weigh and communicate their decision.
Court of Protection, (court appointed) Deputyship
You can apply to become someone’s deputy if they ‘lack mental capacity’ – this means they can’t make a decision for themselves at the time it needs to be made. They may still be able to make decisions for themselves at other times. People may lack mental capacity because, for example:
- they’ve had a serious brain injury or illness
- they have dementia
- they have severe learning disabilities.
You can apply to be just one type of deputy or both. If you’re appointed, you’ll get a court order saying what you can and can’t do.
GOV.UK (2016) Deputies: make decisions for someone who lacks capacityYour rights
How will you know if your review/meeting or assessment is person-centred?
A person-centred approach should capture the voices of young people and adults, to empower them to be in control of their lives. People should be put at the centre of planning and decision-making. Putting the young person at the centre of planning and decision making allows them, and others, to plan what is important to them. Such as: what they are interested in, what makes them happy and what their aspirations are. Also, the support young people might need to stay healthy and safe, and to be a valued member of the local community and society.
As a deputy, you’ll be authorised by the Court of Protection to make decisions on their behalf. There are 2 types of deputy:
- property and financial affairs, for example paying bills or organising a pension
- personal welfare/health, for example making decisions about medical treatment and how someone is looked after.
- Have you been prepared to participate in the meeting, planning or review?
- Do you know what ‘the point’ of the meeting is? What is the plan?
- Do you know and can you express when things are going well and when they are not?
- Have your communication needs been addressed?
- Have you been asked what your views are? Are they different to your family?
- Do you feel your views have been heard and recorded?
- Do you feel that the review/plan/assessment is reflective of your whole life?
- If people are helping you to make certain decisions, do they understand what is important to you?
- Who is helping you to make decisions, and about what?
Everyone has a right to have wishes, feelings and aspirations for the future. Everyone has a right to have a voice and feel their views are heard. All people should be treated fairly and there is a law called the Equality Act which helps to make sure this happens.
The Council for Disabled Children has a Legal Handbook which can help you understand your rights.
Making decisions in advanceWhen you are not well sometimes it can be left to other people to make decisions about your life and your care. You can make your decisions and wishes in advance, to help other people know what works best for you.
The following pointers may help:
The person seeing you should explain how any information you give them might be shared, and about your right to talk to someone on your own.
The person seeing you should check that you agree with the help they are suggesting and explain the possible choices if you do not agree.
If you or your family need help from an interpreter or want information in a certain way, then the health/social care practitioner, or the person working with you, should try and organise this for you.
If you are not happy with the help you have received. More information can be found in our complaints procedure.
The Care Act 2014 says that: ‘the advocacy duty will apply from the point of first contact between a person and their local authority and at any later stage of the assessment, planning, care review, safeguarding enquiry or safeguarding adult review. If it appears to the authority that a person has care and support needs, then a judgement must be made as to whether that person has substantial difficulty in being involved and if there is an appropriate individual to support them. An independent advocate must be appointed to support and represent the person for the purpose of assisting their involvement if these two conditions are met’.
SCIE (2015) Independent advocacy under the Care Act 2014