Understanding mental capacity
Understanding mental capacity

Start this free course now. Just create an account and sign in. Enrol and complete the course for a free statement of participation or digital badge if available.

Free course

Understanding mental capacity

3.4 Other types of decisions and supports

Other decision-making processes exist, the most common of which are: best interests decisions, advance decisions, appointees, deputies and lasting powers of attorney. A brief description of each is provided in Table 2.

Table 2 Some of the different types of decision making processes and roles

Best interests decisionA best interests decision is, as the name suggests, made in the person’s best interests. One person’s best interests may differ from another’s. Best interests apply to decisions about finance, personal welfare and health care. A best interests assessor should be the most appropriate person involved in that decision except where a lasting power of attorney is in place.
Advance decisionAn advance decision is a refusal of specific medical treatment in certain circumstances. It can be made by anyone over 18 who has the mental capacity to make the decision.
AppointeeIf an adult does not have property or savings, their finances can be managed by someone called an appointee. Or, in Scotland a court appointed guardian under a guardianship order.
DeputyA deputy is appointed by the Court of Protection and has legal authority to make particular decisions for someone who lacks capacity. This can be for a one-off decision or to take ongoing responsibility for making decisions on a person’s behalf. A deputy is necessary for property and for complex financial matters and may be necessary for personal welfare where a series of decisions is needed over time or where family members and health and social care services disagree.

Scottish law provides for short-term or occasional (and thus generally less invasive) interventions by anyone with an interest in the property, financial affairs or personal welfare of the adult with incapacity. There are safeguards. For example the views of the ‘named person’ The Public Guardian also supervises any person operating under the authority of an intervention order.

Lasting power of attorneyA person who has capacity can chose someone ahead of time to be their attorney with a lasting power of attorney. This person can then make decisions on their behalf should they lose capacity in the future. This could be decisions about their property and affairs or about their health and welfare, or both.
Independent mental capacity advocateSomeone who has been specially trained to represent and support people who are not able to make certain decisions and do not have family or friends who are able to speak for them. They provide information to make sure the decision is made in the person’s best interests.

One further decision-maker is that of the independent mental capacity advocate. The video below illustrates what an independent mental capacity advocate does. It shows how one advocate decided how best to proceed when someone he was supporting was having difficulty eating.

Download this video clip.Video player: The role of the Independent Mental Capacity Advocate
Skip transcript: The role of the Independent Mental Capacity Advocate

Transcript: The role of the Independent Mental Capacity Advocate

[MUSIC PLAYING]
WILLIAM
When was the last family visit Dawn?
DAWN
Um, I'd have to check the book, but I can't remember one. He talks about a sister sometimes in Cornwall, or maybe it's Devon.
WILLIAM
Now is a good time?
DAWN
Mm, morning's best.
WILLIAM
Mr. Robinson, I'm what's called an independent mental capacity advocate, an IMCA. But you can call me William for short. I'm here because you're having trouble eating, Mr. Robinson.
MR. ROBINSON
I like my porridge.
WILLIAM
That must be because you find it much easier to get down?
MR. ROBINSON
I like the porridge.
WILLIAM
I've been speaking with your doctor, Doctor De Silva. And she thinks we should discuss the possibility of putting a tube in. A peg that will help the food get right down into your stomach where it will do most good.
MR. ROBINSON
Where's Mary?
WILLIAM
I'll leave you to it, Mr. Robinson. His wife?
DAWN
Died 12 years ago.
WILLIAM
Yes, yes, Mrs. Thomas. Peter Robinson, he's having trouble swallowing. Peter Robinson, Mrs. Thomas, your brother.
[FORK SCRAPING ON PLATE]
DAWN
I managed to get some of that pear you like. I'll remember to use more care. [GIGGLES] Here you go.
Mm, looks great. And another. Let me get that. There you go. You enjoyed that, didn't you?
WILLIAM
Can I have a word, Dawn?
DAWN
Yeah. Just a minute. (QUIETLY) I'll see if I can get you some of that fish pie tomorrow. I know its your favourite. There. There we go.
WILLIAM
That didn't look too bad. He seemed to be swallowing quite a bit of that.
DAWN
Well, I spend my time on it. I know he likes?
WILLIAM
And he doesn't like the dining area?
DAWN
No, he likes his room.
[SQUEAKY DOOR]
WILLIAM
So how long have you been his care giver?
DAWN
Six years.
WILLIAM
And what do you think about the peg?
DAWN
Well it's not that difficult to make his food nice for him is it?
WILLIAM
According to his doctor he is not eating, he's losing weight and he's not getting the nutrition that he needs. I will be speaking to the speech and language therapist as well, but your opinion is important too. Does he get upset?
DAWN
Some people think it's a bit tricky, but we always get along. Could you-- could you pass me that tea towel, please?
WILLIAM
I have to go and write up my report. So if there's anything else that you think is important, it would be really helpful. Give it some thought, eh?
DAWN
What are you going to recommend?
WILLIAM
It's Doctor De Silva's job to decide what's in Mr. Robinson's best interests. What I can try and do is work out what he might prefer. I have no idea which way it will go. Do you mind if I use the office next door the type up my notes while they're still fresh in my mind?
DAWN
No, that's-- that's fine.
WILLIAM (VOICEOVER)
It was very difficult to get Mr. Robinson's views directly, but Mr. Robinson's caseworker Dawn Azura has been invaluable in providing an insight into what his wishes might be. She has shown that with a little care and forward planning, Mr. Robinson can be fed satisfactorily. And she's provided evidence that food has always been an important part of his life.
WOMAN
So what do you think about the peg?
WILLIAM
I think I'm glad I asked the advice of the person who knows him best. But if they decide not to go ahead, you're going to have your work cut out. You'll have to let the rest of the staff into the secrets of what Peter likes to eat and how he likes to eat it.
[MUSIC PLAYING]
End transcript: The role of the Independent Mental Capacity Advocate
The role of the Independent Mental Capacity Advocate
Interactive feature not available in single page view (see it in standard view).

In summary, there are various decision-making processes that support and protect people who may lack capacity to make certain decisions.

Skip Your course resources
MHC_1

Take your learning further371

Making the decision to study can be a big step, which is why you'll want a trusted University. The Open University has 50 years’ experience delivering flexible learning and 170,000 students are studying with us right now. Take a look at all Open University courses372.

If you are new to university level study, we offer two introductory routes to our qualifications. Find out Where to take your learning next?373 You could either choose to start with an Access courses374or an open box module, which allows you to count your previous learning towards an Open University qualification.

Not ready for University study then browse over 1000 free courses on OpenLearn375 and sign up to our newsletter376 to hear about new free courses as they are released.

Every year, thousands of students decide to study with The Open University. With over 120 qualifications, we’ve got the right course for you.

Request an Open University prospectus371