Literature Review on Provision of Appropriate and Accessible ...

PAGE 58
Legal duty to consult with others
The Act places a duty on the decision-maker to consult other people
close to a person who lacks capacity, where practical and appropriate,
on decisions <strong>Literature</strong> affecting <strong>Review</strong> the person Provision and what of Appropriate might be in and the Accessible person’s best
interests (Bartlett, Support 2008). to People In particular, with an Intellectual under Section Disability 4 (7) who the are decisionmaker
has a duty to take into account the views of people including:
Experiencing Crisis Pregnancy
anyone the person has previously named as someone they want to be
consulted; anyone involved in caring for the person; anyone interested
in their welfare (for example, family carers, other close relatives, or an
advocate already working with the person) (Bartlett, 2008).
Recognition of the contingent nature of incapacity
Recognises the contingent nature of incapacity and requires assessors
to go beyond simply assessing capacity and to take steps to develop
capacity. Section 1 (3) states that a person is not to be treated as unable
to make a decision unless ‘all practicable steps to help the person have
been taken without success’. Section 3 (2) provides that a person is not to
be regarded as unable to understand relevant information if the person
‘is able to understand an explanation of it given to him in a way that is
appropriate to his circumstances’. (There are equivalent provisions in the
Scheme of Mental Capacity Bill 2008.) Thus, according to Donnelly (2008),
the Mental Capacity Act 2005 requires steps to be taken and imports
a right to comprehensible information into the statutory definition of
capacity.
Assessment of capacity
Under the Mental Capacity Act 2005, a person is required to make an
assessment of capacity before carrying out any care or treatment. The
more serious the decision, the more formal the assessment will need to
be. (See Chapter 4 of the Mental Capacity Code of Practice.)
Best interests standard
The Act requires people to follow certain steps to help them work out
whether a particular act or decision is in a person’s best interests.
Where the person who acts or makes the decision has followed the steps
to establish whether a person has capacity and done everything they