Mental Capacity

These are designed to protect people who lack capacity to make particular decisions, but also to maximise their ability to make decisions, or to participate in decision-making, as far as they are able to do so.

There is a lot of detail in the MCA but there are some key principles that are important to understand. 1 All adults have the right to make decisions for themselves unless it can be shown that they are unable to make them. This means that people must not assume that someone cannot make decisions for themselves just because they have a particular medical condition or disability, or because they are of a particular age or appearance.

2 Everyone should be given all the help and support they need to make a decision before anyone concludes that they cannot make their own decision. This means that everyone helping to care for someone must make an effort to provide all the necessary information in a way the person can understand and then make it easy for them to try and explain what their preferences are. This may be through different ways of communicating; for example, it may be easier for a person with learning disabilities to understand something presented with pictures, photographs, videos or tapes. A deaf person may need the information explained using sign language.

3 People are allowed to make what we might think is an unwise or eccentric decision. We cannot say because we think the decision is unwise that the person does not have the capacity to make that decision. Many people make unwise decisions but this alone does not mean that they lack capacity to make decisions for themselves.

4 Any actions taken or decisions made on behalf of someone who lacks capacity must be done in their best interests, after considering what is known about their preferences (unless they have made a relevant and valid advance decision to refuse medical treatment. It is still important to involve the person wherever possible in making the decision.

5 The final principle of the MCA is to make sure that people who lack capacity are not restricted unnecessarily. So someone making the decision or acting for someone who lacks capacity must consider whether it is possible to do this in a way that would interfere less with the freedoms and rights of the person who lacks capacity.

PROTECTIONS UNDER THE ACTThe Act introduces significant new protections from abuse for those lacking capacity. However, there are also safeguards for those who work with individuals lacking capacity – provided their actions are in the best interests of the person concerned. Court of Protection

A new superior court of record entitled the Court of Protection is created under Section 45 of the Mental Capacity Act. The Court can sit anywhere in England and Wales and has jurisdiction to make decisions in relation to the property and affairs and healthcare and personal welfare of persons who lack capacity. The Court will be responsible for welfare matters that would previously have been referred to the High Court. The Court has the same powers as the High Court, and will have the power to summon witnesses and enforce orders. The Court has the power to issue Practice Directions, and also to make its own procedural rules. The Court also has the power under section 48 to make interim orders prior to receiving evidence as to lack of capacity, where there is reason to believe that the person lacks capacity in respect of a particular matter, and it is in his best interests for the Court to so act. Section 50 (1) sets out those individuals who can apply to the Court of Protection without having to apply for permission to apply first. It includes: a person who lacks, or is alleged to lack, capacity;

if such a person has not reached 18, anyone with parental responsibility for him; the donor or a donee of a lasting power of attorney to which the application relates; a deputy appointed by the court for a person to whom the application relates; a person named in an existing order of the court, if the application relates to the order. An appeal against a decision of the Court of Protection would generally need to be made to the Court of Appeal. PROSECUTION FOR ILL-TREATMENT OR NEGLECT

The Mental Capacity Act creates the criminal offences of ill-treatment or wilful neglect under Section 44 based on existing principles (under Section 127 (1) of the Mental Health Act 1983). The offences can be committed by anyone responsible for that person’s care. They are offences punishable ‘either way’ in the Magistrates’ or Crown Court as follows: on summary conviction, to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum or both; on conviction on indictment, to imprisonment for a term not exceeding 5 years or a fine or both. The elements are that the offender:

has the care of the person in question OR is the donee of a power of attorney OR is a court-appointed deputy; reasonably believes the person lacks capacity (or they do lack capacity); ill-treats or wilfully neglects the person.

It can be expected that ill-treatment will require more than trivial ill-treatment, and will cover both deliberate acts of ill-treatment and also those acts reckless as to whether there is ill-treatment. Wilful neglect will require a serious departure from the required standards of treatment and usually requires that a person has deliberately failed to carry out an act that they were aware they were under a duty to perform. In consequence, defences could be raised to the effect that the elements of the offence set out in Section 44 are not made out in the following terms: there is no Section 44 relationship (no care/power of attorney/court-appointed role); the person does not lack capacity and/or there was no reasonable belief in such a lack of capacity; there was no ill-treatment or wilful neglect.

OFFICE OF THE PUBLIC GUARDIAN

A new public official, known as the Public Guardian (appointed by the Lord Chancellor) is created. The purpose of the Public Guardian is to oversee how procedures relating to capacity work in practice to ensure that those who lack capacity do not suffer abuse. The Public Guardian is to have the following roles as set out in Section 58 (1): establishing and maintaining registers of lasting powers of attorney and of orders appointing deputies and supervising deputies; directing Court of Protection visitors to visit donors or donees of LPAs, deputies or those appointing them; dealing with complaints about how an attorney or deputy is exercising his powers.

It is anticipated that the Public Guardian will work closely with organisations such as local authorities and NHS bodies, and publish information describing his work. The Public Guardian also has powers enabling him to examine and take copies of relevant health, social service or care records and to interview individuals concerned in private.

The work of the Public Guardian will be scrutinised by a Public Guardian Board. WHAT PROTECTION DOES THE MENTAL CAPACITY ACT OFFER FOR PEOPLE PROVIDING CARE OR TREATMENT? Section 5 of the Mental Capacity Act provides protection from liability for carers, healthcare and social staff when carrying out certain tasks. This section offers protection against civil and criminal liability for certain acts done in connection with the care or treatment of a person which would normally require that person’s consent (ie helping a person to dress, eat or wash). Such acts are not limited to “day to day” or emergency situations, as they could include, for example, performing a serious planned operation. Who is protected from liability by section 5?

Section 5 of the Act is most likely to affect:
family carers and other kind of carers;
care workers;
healthcare and social care staff; and
others who may occasionally be involved in the care or treatment of a person who lacks capacity to consent (for example, ambulance staff, housing workers, police).

WHAT ARE THE ADVANTAGES OF THIS PROTECTION?

Without the statutory protection of Section 5, acts such as those described above, could amount to civil wrongs, such as trespass, or crimes, such as assault. This protection is subject to the limitations in Section 6. The limitations set out that the protection can apply to acts of restraint provided such acts are also aimed at preventing harm to the resisting individual, are a proportionate response to that resistance, and are in the best interests of that individual.

This section enables steps to be taken on behalf of a person by family members, carers and health and care professionals without the need for any formal authority or involvement of the Court of Protection as long as the steps are in the person’s best interests. There is no requirement for decisions taken within the scope of this section to be documented or for any person or body to be informed of the decisions taken. The protection will apply in any setting where a person is being cared for or where services are being provided to him or her (ie at a person’s home, a day centre or a hospital). LIMITATIONSWhat limits are there on protection from liability under section 5? Section 6 of the Act sets two important limitations to the protection from liability given to “section 5 acts”: The first limitation relates to restraint.

Restraint can only be used when (1) the person using it reasonably believes that it is necessary to prevent harm and (2) its use is proportionate to the likelihood and seriousness of the harm. The restraint must also be in the person’s best interests. The second limitation is that a valid decision by a donee or a deputy takes priority over any action which may be taken under section 5. There is however an important proviso to the second limitation. If there is a dispute as to whether a decision of a donee or deputy either prevents life-sustaining treatment being given or might cause a serious deterioration of a patient’s condition, action can be taken to sustain life or prevent serious deterioration while the dispute is referred to the Court of Protection.

WHAT CONSTITUTES RESTRAINT?

Acts of restraint could include steadying someone’s arm to enable an injection to be given safely, holding someone down whilst administering a sedative, using reasonable force to take a person to hospital to receive necessary treatment, using barriers to prevent someone falling out of bed and securing the external doors of a care home to prevent a patient from leaving. What constitutes harm? s.6(2)

situations of harmful situations:

a person with learning disabilities might run into a bust road without warning, if they do not understand the dangers of cars a person with dementia may wander away from home and get lost, if they cannot remember where they live a person with manic depression might engage in excessive spending during a manic phase, causing them to get into debt a person may also be at risk of harm of they behave in a way that encourages others to assault or exploit them (for example, by behaving in a dangerously provocative way).

What is a proportionate response? s. 6(3)

A proportionate response means using the minimum amount of restraint possible to prevent the harm occurring. The level of restraint should diminish as the risk of harm diminishes. Carers and healthcare and social care staff should for example consider less restrictive options before using restraint.

DEPRIVATION OF LIBERTY

Although section 5 of the Act permits the use of restraint where it is necessary, section 6(5) of the Act confirms that there is no protection under the Act for actions that result in someone being deprived of their liberty, as defined by Article 5(1) of European Convention of Human Rights. Deprivation of liberty for a short period of time in order to respond to an emergency does not constitute a violation of Article 5. Deprivations of liberty which do not result in the person being subject to an application under the Mental Health Act 1983 must be authorised by the Court of Protection in order to comply with Article 5.

WHAT DOES THE ACT DO?

The Act enshrines in statute current best practice and common law principles concerning people who lack mental capacity and those who take decisions on their behalf. It replaces current statutory schemes for Enduring Powers of Attorney and Court of Protection receivers with reformed and updated schemes. The Act deals with the assessment of a person’s capacity and acts by carers of those who lack capacity:

ASSESSING LACK OF CAPACITY-

The Act sets out a single clear test for assessing whether a person lacks capacity to take a particular decision at a particular time. It is a “decision-specific” and time specific test. No one can be labelled ‘incapable’ simply as a result of a particular medical condition or diagnosis. Section 2 of the Act makes it clear that a lack of capacity cannot be established merely by reference to a person’s age, appearance, or any condition or aspect of a person’s behaviour which might lead others to make unjustified assumptions about capacity.

BEST INTERESTS-

An act done or decision made for or on behalf of a person who lacks capacity must be in that person’s best interests. The Act provides a non-exhaustive check-list of factors that decision-makers must work through in deciding what is in a person’s best interests. A person can put his/her wishes and feelings into a written statement if they so wish, which the person making the determination must consider. Also, people involved in caring for the person lacking capacity gain a right to be consulted concerning a person’s best interests. Acts in connection with care or treatment- Section 5 offers statutory protection from liability where a person is performing an act in connection with the care or treatment of someone who lacks capacity. This could cover actions that might otherwise attract criminal prosecution or civil liability if someone has to interfere with the person’s body or property in the course of providing care or treatment.

RESTRAINT-

Section 6 of the Act sets out limitations on section 5. It defines restraint as the use or threat of force where a person who lacks capacity resists, and any restriction of liberty or movement whether or not the person resists. Restraint is only permitted if the person using it reasonably believes it is necessary to prevent harm to the person who lacks capacity, and if the restraint used is a proportionate response to the likelihood and seriousness of the harm. This section does not extend to deprivation of liberty within the meaning of Article 5(1) of the European Convention on Human Rights.

The Government has announced that there will be additional safeguards for people who lack capacity and are deprived of their liberty but do not receive mental health legislation safeguards, as a result of the European Court of Human Rights judgement in HL v United Kingdom (the “Bournewood” case). The Government has announced that it intends to introduce these safeguards by amending the Mental Health Act. The Act deals with two situations where a designated decision-maker can act on behalf of someone who lacks capacity:

LASTING POWERS OF ATTORNEY (LPAS) –

The Act allows a person to appoint an attorney to act on their behalf if they should lose capacity in the future. This is like the current Enduring Power of Attorney (EPA) in relation to property and affairs, but the Act also allows people to empower an attorney to make health and welfare decisions. Before it can be used an LPA must be registered with the Office of the Public Guardian (see below). EPAs created before April 2007 can be registered after the implementation date but it will not be possible to create EPAs after this time.

COURT APPOINTED DEPUTIES-

The Act provides for a system of court appointed deputies to replace the current system of receivership in the existing Court of Protection. Deputies will be able to be appointed to take decisions on welfare, healthcare and financial matters as authorised by the new Court of Protection (see below) but will not be able to refuse consent to life-sustaining treatment. They will only be appointed if the Court cannot make a one-off decision to resolve the issues. People appointed as receivers before April 2007 will retain their power concerning property and affairs after the implementation date and will be treated as deputies after this time. The Act has created a new public body and a new official to support the statutory framework, both of which will be designed around the needs of those who lack capacity:

A NEW COURT OF PROTECTION-

The new Court has jurisdiction relating to the whole Act. It has its own procedures and nominated judges. It is able to make declarations, decisions and orders affecting people who lack capacity and make decisions for or appoint deputies to make decisions on behalf of people lacking capacity. It deals with decisions concerning both property and affairs, as well as health and welfare decisions. It is particularly important in resolving complex or
disputed cases involving, for example, whether someone lacks capacity or what is in their best interests. The Court will be based in venues in a small number of locations across England and Wales and will be supported by a central administration in London.

A NEW PUBLIC GUARDIAN-

The Public Guardian has several duties under the Act and will be supported in carrying these out by an Office of the Public Guardian (OPG). The Public Guardian and his staff will be the registering authority for LPAs and deputies. They will supervise deputies appointed by the Court and provide information to help the Court make decisions. They will also work together with other agencies, such as the police and social services, to respond to any concerns raised about the way in which an attorney or deputy is operating.

A Public Guardian Board will be appointed to scrutinise and review the way in which the Public Guardian discharges his functions. The Public Guardian will be required to produce an Annual Report about the discharge of his functions. Richard Brook is the new Public Guardian designate. He is currently the Chief Executive of the Public Guardianship Office. The Public Guardianship Office (PGO), based in Archway, North London, will become the Office of the Public Guardian (OPG) in April 2007. The Act also includes three further key provisions to protect vulnerable people:

INDEPENDENT MENTAL CAPACITY ADVOCATE (IMCA) –

An IMCA is someone appointed to support a person who lacks capacity but has no one to speak for them, such as family or friends. They will only be involved where decisions are being made about serious medical treatment or a change in the person’s accommodation where it is provided by the National Health Service or a local authority. The IMCA makes representations about the person’s wishes, feelings, beliefs and values, at the same time as bringing to the attention of the decision-maker all factors that are relevant to the decision. The IMCA can challenge the decision-maker on behalf of the person lacking capacity if necessary. An IMCA can also be used in relation to Adult Protection where an independent view is required to support the decision making process and inform the protection plan.

ADVANCE DECISIONS TO REFUSE TREATMENT-

The Act creates statutory rules with clear safeguards so that people may make a decision in advance to refuse treatment if they should lack capacity in the future. The Act sets out two important safeguards of validity and applicability in relation to advance decisions. Where an advance decision concerns treatment that is necessary to sustain life, strict formalities must be complied with in order for the advance decision to be applicable. These formalities are that the decision must be in writing, signed and witnessed. In addition, there must be an express statement that the decision stands “even if life is at risk” which must also be in writing, signed and witnessed.

A CRIMINAL OFFENCE-

The Act introduces a new criminal offence of ill treatment or neglect of a person who lacks capacity. A person found guilty of such an offence may be liable to imprisonment for a term of up to five years. The Act also sets out clear parameters for research:

Research involving, or in relation to, a person lacking capacity may be lawfully carried out if an “appropriate body” (normally a Research Ethics Committee) agrees that the research is safe, relates to the person’s condition and cannot be done as effectively using people who have mental capacity. The research must produce a benefit to the person that outweighs any risk or burden. Alternatively, if it is to derive new scientific knowledge it must be of minimal risk to the person and be carried out with minimal intrusion or interference with their rights. Carers or nominated third parties must be consulted and agree that the person would want to join an approved research project. If the person shows any signs of resistance or indicates in any way that he or she does not wish to take part, the person must be withdrawn from the project immediately.

CODE OF PRACTICE

There is a statutory Code of Practice to accompany the Act. The Code provides guidance to all those working with and/or caring for adults who lack capacity, including family members, professionals and carers. It describes their responsibilities when acting or making decisions with, or on behalf of, individuals who lack the capacity to do these things themselves. Those who will have a duty of care to a person lacking capacity, such as attorneys, deputies, IMCAs, professionals and paid carers must have regard to the Code.

DEPRIVATION OF LIBERTY SAFEGUARDS

The Mental Capacity Act (MCA) 2005 provides a statutory framework for acting and making decisions on behalf of individuals who lack the mental capacity to do so for themselves. It introduced a number of laws to protect these individuals and ensure that they are given every chance to make decisions for themselves. The MCA came into force in October 2007. The Government has added new provisions to the Act:the deprivation of liberty safeguards. The safeguards focus on some of the most vulnerable people in our society: those who for their own safety and in their own best interests need to be accommodated under care and treatment regimes that are restrictive and therefore may have the effect of depriving them of their liberty, but who lack the capacity to consent. The deprivation of a person’s liberty is a very serious matter and should not happen unless it is absolutely necessary, and in the best interests of the person concerned.

That is why the safeguards have been created: to ensure that any decision to deprive someone of their liberty is made following defined processes and in consultation with specific authorities. The new provisions in the Act set out the legal framework of the deprivation of liberty safeguards. The deprivation of liberty safeguards were introduced to provide a legal framework around the deprivation of liberty. Specifically, they were introduced to prevent breaches of the European Convention on Human Rights (ECHR) such as the one identified by the judgment of the European Court of Human Rights (ECtHR) in the case of HL v the United Kingdom3 (commonly referred to as the ‘Bournewood’ judgment).

The case concerned an autistic man (HL) with a learning disability, who lacked the capacity to decide whether he should be admitted to hospital for specific treatment. He was admitted on an informal basis under common law in his best interests, but this decision was challenged by HL’s carers. In its judgment, the ECtHR held that this admission constituted a deprivation of HL’s liberty and, further, that: The deprivation of liberty had not been in accordance with ‘a procedure prescribed by law’ and was, therefore, in breach of Article 5(1) of the ECHR, And

There had been a contravention of Article 5(4) of the ECHR because HL had no means of applying quickly to a court to see if the deprivation of liberty was lawful. To prevent further similar breaches of the ECHR, the Mental Capacity Act 2005 has been amended to provide safeguards for people who lack capacity specifically to consent to treatment or care in either a hospital or a registered care home that, in their own best interests, can only be provided in circumstances that amount to a deprivation of liberty, and where detention under the Mental Health Act 1983 is not appropriate for the person at that time. These safeguards are referred to in this Code of Practice as ‘deprivation of liberty safeguards’.

What are the deprivation of liberty safeguards and why were they introduced? Protection in those circumstances where deprivation of liberty appears to be unavoidable, in a person’s own best interests Every effort should be made, in both commissioning and providing care or treatment, to prevent deprivation of liberty. If deprivation of liberty cannot be avoided, it should be for no longer than is necessary. The safeguards provide for deprivation of liberty to be made lawful through ‘standard’ or ‘urgent’ authorisation processes. These processes are designed to prevent arbitrary decisions to deprive a person of liberty and give a right to challenge deprivation of liberty authorisations. The deprivation of liberty safeguards mean that a ‘managing authority’ (I.e. the relevant hospital or care home) must seek authorisation from a ‘supervisory body’ in order to be able lawfully to deprive someone of their liberty.

Before giving such an authorisation, the supervisory body must be satisfied that the person has a mental disorder and lacks capacity to decide about their residence or treatment. The supervisory body could be a primary care trust, a local authority. The Deprivation of Liberty Safeguards process in Cornwall will be a joint one. A decision as to whether or not deprivation of liberty arises will depend on all the circumstances of the situation. It is neither necessary nor appropriate to apply for a deprivation of liberty authorisation for everyone who is in hospital or a care home simply because the person concerned lacks capacity to decide whether or not they should be there. In deciding whether or not an application is necessary, a managing authority should carefully consider whether any restrictions that are, or will be, needed to provide ongoing care or treatment amount to a deprivation of liberty when looked at together.

THE DEPRIVATION OF LIBERTY SAFEGUARDS COVER:

How an application for authorisation should be applied for. How an application for authorisation should be assessed.
The requirements that must be fulfilled for an authorisation to be given. How an authorisation should be reviewed
What support and representation must be provided for people who are subject to an authorisation. And
How people can challenge authorisations.

WHO IS COVERED BY THESE SAFEGUARDS?

The safeguards apply to people in England and Wales who have a mental disorder and lack capacity to consent to the arrangements made for their care or treatment, but for whom receiving care or treatment in circumstances that amount to a deprivation of liberty may be necessary to protect them from harm and appears to be in their best interests. A large number of these people will be those with significant learning disabilities, or older people who have dementia or some similar disability, but they can also include those who have certain other neurological conditions (for example as a result of a brain injury). In order to come within the scope of a deprivation of liberty authorisation, a person must be detained in a hospital or care home, for the purpose of being given care or treatment in circumstances that amount to a deprivation of liberty.

The authorisation must relate to the individual concerned and to the hospital or care home in which they are detained. For the purposes of Article 5 of the ECHR, there is no distinction in principle between depriving a person who lacks capacity of their liberty for the purpose of treating them for a physical condition, and depriving them of their liberty for treatment of a mental disorder. There will therefore be occasions when people who lack capacity to consent to admission are taken to hospital for treatment of physical illnesses or injuries, and then need to be cared for in circumstances that amount to a deprivation of liberty. In these circumstances, a deprivation of liberty authorisation must be applied for.

Consequently, this Code of Practice must be followed and applied in acute hospital settings as well as care homes and mental health units. It is important to bear in mind that, while the deprivation of liberty might be for the purpose of giving a person treatment, a deprivation of liberty authorisation does not itself authorise treatment. Treatment that is proposed following authorisation of deprivation of liberty may only be given with the person’s consent (if they have capacity to make the decision) or in accordance with the wider provisions of the Mental Capacity Act 2005. The safeguards cannot apply to people while they are detained in hospital under the Mental Health Act 1983.

The safeguards can, however, apply to a person who has previously been detained in hospital under the Mental Health Act 1983. There are other cases in which people who are – or could be – subject to the Mental Health Act 1983 will not meet the eligibility requirement for the safeguards. The safeguards relate only to people aged 18 and over. If the issue of depriving a person under the age of 18 of their liberty arises, other safeguards must be considered – such as the existing powers of the court, particularly those under section 25 of the Children Act 1989, or use of the Mental Health Act 1983.

WHEN CAN SOMEONE BE DEPRIVED OF THEIR LIBERTY?

Depriving someone who lacks the capacity to consent to the arrangements made for their care or treatment of their liberty is a serious matter, and the decision to do so should not be taken lightly. The deprivation of liberty safeguards make it clear that a person may only be deprived of their liberty: in their own best interests to protect them from harm

if it is a proportionate response to the likelihood and seriousness of the harm, and if there is no less restrictive alternative.

Under no circumstances must deprivation of liberty be used as a form of punishment, or for the convenience of professionals, carers or anyone else. Deprivation of liberty should not be extended due to delays in moving people between care or treatment settings, for example when somebody awaits discharge after completing a period of hospital treatment.

WHERE DO THE SAFEGUARDS APPLY?

Although the Bournewood judgment was specifically about a patient who lacked capacity to consent to admission to hospital for mental health treatment, the judgment has wider implications that extend to people who lack capacity and who might be deprived of their liberty either in a hospital or in a care home. It will only be lawful to deprive somebody of their liberty elsewhere (for example, in their own home, in supported living arrangements other than in a care home, or in a day centre) when following an order of the Court of Protection on a personal welfare matter. In such a case, the Court of Protection order itself provides a legal basis for the deprivation of liberty.

This means that a separate deprivation of liberty authorisation under the processes set out in this Code of Practice is not required. How do the safeguards apply to privately arranged care or treatment? Under the Human Rights Act 1998, the duty to act in accordance with the ECHR applies only to public authorities. However, all states that have signed up to the ECHR are obliged to make sure that the rights set out in the ECHR apply to all of their citizens. The Mental Capacity Act 2005 therefore makes it clear that the deprivation of liberty safeguards apply to both publicly and privately arranged care or treatment.

How do the safeguards relate to the rest of the Mental Capacity Act 2005? The deprivation of liberty safeguards are in addition to, and do not replace, other safeguards in the Mental Capacity Act 2005. This means that decisions made, and actions taken, for a person who is subject to a deprivation of liberty authorisation must fulfil the requirements of the Act in the same way as for any other person. In particular, any action taken under the deprivation of liberty safeguards must be in line with the principles of the Act:

CODE OF PRACTICE

The safeguards have their own code of practice which is available through the Office of the Public Guardian. How Deprivation of Liberty Safeguards relate to Safeguarding Adults? The deprivation of liberty safeguards legitimise acceptable restrictive practice and therefore should not become a safeguarding adults issue. Issues could arise however in the following circumstances:

If a managing authority is asked to make an application for a deprivation authorisation and refuses to do so, an alert to safeguarding adults should be made. An application could be generated as part of the ongoing safeguarding adults process for a relevant person. If, in the process of assessing for an application for a deprivation, abusive or unlawful practice is identified.

The Mental Capacity Act 2005 for England and Wales received Royal Assent on 7 April 2005 and parts of it came into force in April 2007, and will be fully implemented by 1 October 2007 The Act will generally only affect people aged 16 or over and provides a statutory framework to empower and protect people who may lack capacity to make some decisions for themselves, for example, people with dementia, learning disabilities, mental health problems, stroke or head injuries who may lack capacity to make certain decisions.

It makes it clear who can take decisions in which situations and how they should go about this. It enables people to plan ahead for a time when they may lack capacity. The Act covers major decisions about someone’s property and affairs, healthcare treatment and where the person lives, as well as everyday decisions about personal care (such as what someone eats), where the person lacks capacity to make the decisions themselves.

FUNCTION OF REGULATORY BODIES.

The Nursing and Midwifery Council

What we doThe Nursing and Midwifery Council regulates nurses and midwives in England, Wales, Scotland, Northern Ireland and the Islands

What does regulation mean?

The Nursing and Midwifery Council is a regulatory body. This means that we set standards for nurses and midwives to meet in their working lives. Nurses and midwives have a code f conduct that they must stick to, that states how they must work and behave.

REGULATING CARE IN WALES
THE CARE STANDARDS INSPECTORATE FOR WALES (CSIW)

The Care Standards Inspectorate for Wales (CSIW) was established in 2002 as part of a package of reforms which aim to protect and promote the quality of life and independence of vulnerable people and children. Other changes included improving the performance of social services in Wales, ensuring co-ordination between health and social care and the establishment of the Care Council to set standards and regulate the workforce. What does CSIW do?

Working to the regulations and national minimum standards set by the National Assembly for Wales and the Welsh Assembly Government, CSIW regulates social care, early years and private and voluntary health care services in Wales. This includes: Care homes for adults – including care homes with nursing facilities and adult family placements Children’s homes

Day care services for children – including day nurseries, childminders, playgroups, out-of-school clubs, creche and play-schemes Independent fostering agencies (since April 2003)
Public sector fostering (since April 2003)
Boarding schools, residential special schools and further education colleges that accommodate students under 18 (since February 2003) Adoption services (since April 2003)
Voluntary and private sector health care – including hospitals and clinics Residential family centres (since September 2003)
Domiciliary care agencies (since March 2004)
Nurses’ agencies (since October 2003)
There are four specific aspects of CSIW’s work:
Registration – to decide who can provide services
Inspection – to inspect those services and publish reports
Complaints – to investigate and deal with complaints
Enforcement – to make sure that the Care Standards Act, and the associated regulations and national minimum standards are met.

THE CARE COUNCIL FOR WALES

The Care Council for Wales is the organisation established by the Welsh Assembly Government to secure higher standards of conduct, practice and training across the social care workforce in Wales. This is part of a wider agenda to improve the quality of, and confidence in, the social care services in Wales. The Care Council for Wales is responsible for promoting high standards of conduct and practice among social care workers and high standards in their training.

The Care Council has agreed Codes of Practice which apply to social care workers and employers across the social care sector. The Care Council has set up a register of social care workers to improve public protection; set up a workforce development agenda which will promote and support access to training, qualifications and continuous professional development. The Care Council also regulates social work qualifying and post-qualifying training.

HSE is the national independent regulator for health and safety in the workplace. This includes private or publicly owned health and social care settings in Great Britain. We work in partnership with our co-regulators in local authorities to inspect, investigate and where necessary take enforcement action.

What does HSE DoEnsure that risks to people’s health and safety from work activities are properly controlled. The law says: employers have to look after the health and safety of their employees; employees and the self-employed have to look after their own health and safety; and all have to take care of the health and safety of others, for example, members of the public who may be affected by their work activity. Our job is to see that everyone does this. We are interested in the health and safety of people at work – that includes people who may be harmed by the way work is done (for example because they live near a factory, or are passengers on a train).

In some situations, we are also concerned with the way work affects the environment. We develop new health and safety laws and standards, and play a full part in international developments, especially in the European Union and: inspect workplaces; (Does HSE inspect all places where people work?) investigate accidents and cases of ill health; enforce good standards, usually by advising people how to comply with the law, but sometimes by ordering them to make improvements and, if necessary, by prosecuting them; publish guidance and advice; provide an information service; carry out research; carry out various activities such as nuclear site licensing and accepting off shore installation safety cases.

Some key points to remember:The Health and Safety Commission (HSC) and Health and Safety Executive (HSE) are statutory bodies whose overall purpose is to ensure that risks to people’s health and safety from work activities are properly controlled. Local authorities do the same for certain other premises. the Health and Safety at Work etc. Act 1974 requires the Health and Safety Commission to provide an “information and advisory service” to help the public. This service is extensive and respected throughout the world. many other organisations in the United Kingdom provide similar or complimentary services. the amount of information has grown in quantity over the last twenty-five years. the systems and services for collecting, storing, disseminating and retrieving information have diversified during the same period.