Assessment and care planningCare and Support Statutory Guidance
23.12The Care Act 2014 applies to many adults who lack the mental capacity to make decisions about their care and support and, in certain cases, makes specific provision for such persons.
23.13In relation to assessment:
•section 9(5) of the Care Act 2014 requires the local authority to involve any person who appears interested in the adult’s welfare, when the adult lacks the capacity to ask the local authority to involve a particular individual; section 25(3) makes similar provision in relation to the preparation of care plans; section 27(2) makes similar provision in relation to reviews; section 28(5) makes similar provision in relation to independent personal budgets;
•section 11 provides that a local authority must undertake an assessment even if the adult refuses one, if the adult lacks capacity to refuse the assessment and the local authority is satisfied that an assessment would be in their best interests or they are experiencing, or at risk of, abuse or neglect;
•section 67 can require the provision of ‘independent advocates’ (see immediately below), as can sections 35–41 of the Mental Capacity Act 2005;
•guidance is at Care and Support Statutory Guidance, in Chapters 6 and 10.
23.14Independent advocacy support is required to be provided by section 67 of the Care Act 2014, in connection with a number of issues that arise under the Act during the assessment and care planning, where an individual ‘would experience substantial difficulty’ in making decisions and has no ‘appropriate person’ to assist them: see paras
7.53–
7.65 above (section 68 requires local authorities to provide independent advocacy support, in similar circumstances, where there is a safeguarding enquiry or review: see para
24.10 below).
23.15Also, sections 35–41 of the Mental Capacity Act 2005 can require/allow for the appointment of an independent mental capacity advocate (IMCA) in relation to a care and support assessment process (see ‘Involvement/independent advocates/relevance of Mental Capacity Act 2005’, above at paras
7.53–
7.65).
23.16Direct payments are subject to a significantly different regime where the adult lacks capacity to request direct payments, by virtue of section 32 of the Care Act 2014 and the Care and Support (Direct Payments) Regulations 2014 (see para
9.53 on ‘direct payments’, above).
23.17It follows that, right at the start of the assessment process, and later on, whenever a local authority performs a function under the Care Act 2014, one of the first questions that the local authority will have to ask itself is whether the adult may lack the mental capacity to participate effectively in the process, or may experience substantial difficulty in so doing. Accordingly, as the Care and Support Statutory Guidance advises, an assessment of capacity may need to be undertaken at an early stage:
6.32 Where there is concern about a person’s capacity to make a specific decision, for example as a result of a mental impairment such as dementia, acquired brain injury or learning disabilities, then an assessment of capacity should be carried out under the Mental Capacity Act (MCA). Those who may lack capacity will need extra support to identify and communicate their needs and make subsequent decisions, and may need an Independent Mental Capacity Advocate. The more serious the needs, the more support people may need to identify their impact and the consequences. Professional qualified staff, such as social workers, can advise and support assessors when they are carrying out an assessment with a person who may lack capacity.