5.2 The law and decision making

Understanding the law can help you to support your client with to make decisions

Understanding the law, decision making and dementia

It is important to remember that there are laws to make sure that everyone including people living with dementia are included in making decisions about their health and wellbeing. The Alzheimer’s Society provides some helpful information about these laws.

UK countries have different laws and legal systems around mental capacity and the appointment of people to take over decision making in some circumstances. Each country also has a Code of Practice. This is a document which explains the law and how it should be applied. The Code of Practice explains law in practice and provides guidance.

In England and Wales the Mental Capacity Act 2005 applies. The Alzheimer’s Society website explains the main principles of the Act. See the Code of Practice.

In Scotland the Adults with Incapacity Act 2000 applies. Alzheimer’s Scotland explains the Act here. Note there are different code of practice.

In Northern Ireland the Mental Capacity Act (NI) 2015 applies. The Northern Ireland Department of Health website explains the Act. Code of Practice documents.

These laws help to make sure that people with dementia are not presumed to lack capacity to make decisions just because they have dementia. They also say that incapacity is not an ‘all or nothing’ state – a person might be able to make some decisions but not others.’ This helps to protect the rights of people with dementia.

If your client lacks the ability or mental capacity to make certain decisions, someone will usually make a decision based on their best interests if it needs to be made. This means they will make a decision on behalf of your client based on what they believe the person would want (rather than on what they think is best). Read more about the Best Interest Principle. Some people may have set up a Lasting Power of Attorney giving someone they trust the right to make certain decisions (see below).

Your client may also have Liberty Protection Safeguards in place to help to keep them safe when they lack capacity to make decisions about their care (in England and Wales). These apply in people’s own homes as well as care homes and hospitals. Find out more about Liberty Protection Safeguards.

Who else is involved in decision-making for your client?

Your client’s family, healthcare professionals and social care professionals may all be involved in helping your client to make everyday and important decisions. They may have made plans to help support your client with their health and wellbeing, for example, what helps encourages your client to keep their teeth clean and what to do if they are refusing help with tooth brushing.

Dementia Care plan

Everyone with a dementia diagnosis should have a care plan set up with a health or care professional. However, many people don’t know about these or don’t have a copy. If your client has a care plan they may share this with you to help you to support their needs or your employer may have helped write the care plan following an assessment. It may be a written record or on your electronic care recording system.

A care plan should contain important information about your client such as their:

wishes and preferences (likes and dislikes),

background,

health/medical conditions,

social contacts (important family and friends), religious preferences,

other important information.

The care plan may also mention whether other people are involved in making important decisions for the person and have any legal rights to make decisions on their behalf. For example they may have Lasting Power of Attorney for your client (See below).

Financial and legal plans

Your client may have legally appointed someone they trust to make important decisions on their behalf when they were still able to do so. This is called power of attorney. They may have appointed a relative or friend. Lasting Power of Attorney gives the person legal authority to make decisions on behalf of the person with dementia.

A Lasting Power of Attorney covers a range of decisions. There are two types: Lasting Power of Attorney for Health and Welfare, and Lasting Power of Attorney for property and financial affairs. For example, they may have the legal authority to manage your client’s money and/or to decide where they should live.

If the person does not have a relative or friend, an independent mental capacity advocate (IMCA) must be instructed to protect their rights. The GOV.UK site explains how to make, register or end a Lasting Power of Attorney.

If you are worried about the way a person with Lasting Power of Attorney is behaving, for example, not paying bills or not buying things that your client needs, then talk to your employer.

Lasting Power of Attorney applies to England and Wales only. Scotland and Northern Ireland have separate legal laws.

Scotland

You can also direct your client or their family to more information about Financial and legal plans on this website Plan Ahead

Training and educational resources around mental capacity and shared decision making

Online and local courses are available if you would like additional training and education on mental capacity and dementia. Below are some examples of where they can be found:

Social Care Institute for Excellence

NHS England

Welsh Assembly

Policy Hub Scotland

Department of Health (Northern Ireland)

ACTIONS

Ask your employer if your client has a care plan if you have not seen it. Tell your employer if you think any information is wrong or out of date, or if new information needs to be added.

Find out if a relative or friend has Lasting Power of Attorney for your client. This may help you know who to contact if things need replacing – such as a fridge for example, or there is a damp problem.

Find a training course to learn more about helping people to make decisions.