Poor care could get you five years in jail

It’s time all those involved in the care of the vulnerable woke up to their obligations under the Mental Capacity Act 2005 (‘the Act’).

Eighty per cent of people living in care homes have a form of dementia or severe memory problem.  They are all entitled to have their rights under the Act respected.  While, at the sharp end, those guilty of ill-treatment or wilful neglect can be imprisoned, other breaches can still land the culprit in very hot water.

We are all assumed to have mental capacity until proven otherwise and this means that  capacity must be assessed on a decision by decision basis.  Just because I can’t remember how to cook doesn’t mean I can’t decide what I want to eat.

When an individual’s capacity is doubtful they must be given all practicable help to make decisions  – but don’t forget that we are all entitled to make decisions which others might consider daft – and we don’t lose that right just because we have dementia.

Carers have  a legal obligation to always act in a person’s best interests.  But what does this mean?  The Act makes clear that you must not decide merely from someone’s age or appearance whether they have capacity.  Its important to look at the person and not the illness, no two cases of dementia will be the same.

The person you are caring for should be encouraged to take part in any decision making – and you should take into account their past and present wishes.  Where for example a religious belief has been expressed it should be respected.

Knowledge of the person is critical to making any decision and this knowledge can be gleaned from a range of sources.  For instance, has the person  complied a ‘This is me’ leaflet as offered by the Alzheimer’s Society or has a more detailed ‘Life Story’ been prepared?

Does anyone hold a Health and Welfare Power of Attorney?  Attorneys can have the right to make wide-ranging decisions over a person’s care and welfare, where mental capacity is lacking.  If end-of-life care is involved, is a Care plan or an  Advance decision to refuse medical treatment in place?

The rights of the individual must always be respected and never more so than when they are frail and vulnerable.  The Mental Capacity Act should be no more than a gentle reminder of how we should all be treated in our twilight years but it is also a valuable tool for protecting our rights if they are not observed.  Ignore it at your peril!