SEND Local Offer - Advocacy, advice and information

Find out about advocacy support and the laws relating to the process of considering mental capacity for young people to make their own decisions, including supported decision-making.

The Mental Capacity Act 2005

What is mental capacity?

Mental capacity is the ability of a young person over the age of 16 to make their own decisions. This means being able to:

understand information given to them in relation to a decision
remember the information long enough to make a decision
use or weigh up the information available
communicate their decision in any way which can be recognised.

If they are unable to meet these criteria, they are considered to be ‘lacking capacity’. This can include young people with learning disabilities, mental health problems or brain injury.

When a young person over the age of 16 has been assessed as lacking mental capacity, there may be many different people and agencies involved in making decisions on their behalf, depending on the complexity of the situation. This includes parents, medical and educational professionals and other agencies.

The Mental Capacity Act 2005 (MCA) provides a clear framework for parents on who should be consulted in the decision-making process and when. For example, in life-saving treatment.

Five main principles of the Mental Capacity Act.

Always assume the person is able to make the decision until you have proof they are not.
Try everything possible to support the person make the decision themselves.
Do not assume the person does not have capacity to make a decision just because they make a decision that you think is unwise or wrong.
If you make a decision for someone who cannot make it themselves, the decision must always be in their best interests.
Any decisions, treatment or care for someone who lacks capacity must always follow the path that is the least restrictive of their basic rights and freedoms.

Mencap helps to explain this on The Mental Capacity Act (Mencap)

This easy read guide can also help explain the Act.

Download the Mental Capacity Act 2005: An Easy Read Guide (Local Government Association) [PDF]

When a young person has capacity

In law, young people aged 16 and over are presumed to have capacity. They can consent to, or refuse, treatment in their own right, including hospital admission.

They can refuse access to their medical records and not give consent for clinicians to disclose information to parents.

Children under 16 years of age

The Mental Capacity Act does not apply to children under 16 years old.

In order to decide whether a child under age 16 is able to consent to their own medical treatment, without the need for parental permission or knowledge, they are assessed to establish if they are competent to make such decisions.

This assessment is referred to as ‘Gillick Competence’.

Supported decision-making

A young person with a disability or special educational needs may have questions about how they can be prepared and supported to make decisions about their future.

Under Part 3 of the Children and Families Act 2014, the right to make requests and decisions applies directly to disabled young people and those with special educational needs over compulsory school age (the end of the academic year in which they turn 16) rather than to their parents.

Parents, or other family members, can continue to support young people in making decisions, or act on their behalf, provided that:

the young person is happy for them to do so
it is likely that parents will remain closely involved in the great majority of cases.

Before deciding that someone lacks the capacity to make a decision, all practical and appropriate steps must be taken to help them make the decision themselves. Where they are not able to make their own decision, the Mental Capacity Act says a decision must be made that is in their ‘best interests’.

For further information on supported decision making under the Mental Capacity Act, go to The Mental Capacity Act (Mencap)

Advocacy support

Advocacy means enabling your voice to be heard, speaking for you when you can’t and supporting you when you can. Advocacy is about supporting, enabling, and empowering you to express your views and concerns and access information and services where needed.

Independent Mental Capacity Advocate (IMCA)

If a person has no family or friends for the decision-maker to ask about important decisions like serious medical treatment or changes of accommodation, then an Independent Mental Capacity Advocate must represent the person’s views.

They are a legal safeguard for people who lack the capacity to make big decisions.

Nottinghamshire advocacy service - POhWER

In Nottinghamshire, the organisation POhWER provide independent mental capacity advocacy services. They are an independent organisation, separate from the government, local councils, the NHS and other organisations that provide health and social care.

For more information on the services offered by POhWER in Nottinghamshire, go to Nottinghamshire - Your voice, your choice (POhWER)

Contact POhWER by:

Telephone: 0300 456 2370
Email: pohwer@pohwer.net (opens in new tab)

Ask Us Nottinghamshire

Ask Us Nottinghamshire is a service, which offers free impartial and confidential information, advice and support for parents or carers of children or young people with special educational needs and disabilities. This includes advocacy support over educational matters such as supporting at meetings and resolving problematic situations.

You can contact Ask Us if you are the parent of a child with SEND, or if you are a young person up to the age of 25 looking for support.

For further information go to the Ask Us Nottinghamshire website

Independent Visitors for young people in care

An Independent Visitor is someone just there for you. They are someone to talk to about anything you want and who will make sure you are listened to. They can give you help and advice, be someone to do things you enjoy with, or give you the chance to try something new.

Independent Visitors are adults who give back some of their free time to support children and young people who live with a foster family or in residential care aged 6 to 17.5 years old. They are there to be on your side. They are volunteers who are separate from social services.

For more about the service, go to Support for young people in care (The Children's Society)

Nottingham Advocacy Service

Telephone: 08081 968 423
Email: nottinghamadvocacy@childrenssociety.org.uk

The Equality Act 2010

The Equality Act became law in 2010. It covers everyone in Britain and protects people from discrimination, harassment and victimisation.

If you have a physical or mental impairment that has a substantial and long-term adverse effect on your ability to carry out normal day-to-day activities, you can use the Equality Act to protect you against discrimination in education, work and services provided for you. It requires employers, colleges, venues and service providers to make reasonable adjustments, provide support and make things accessible.

To read more about your rights under the Equality Act: Download Equality Act 2010: What do I need to know? A summary guide to your rights (Government Equalities Office) [PDF]

An easy read guide is also available: Download The Equality Act, making equality real: Easy read document (Government Equalities Office) [PDF]

The Equality Advisory and Support Service (EASS) can also offer advice and support to individuals on issues relating to equality. For further details, go to the Equality Advisory and Support Service website.

The Human Rights Act 1998

Human rights belong to everyone, and they provide a very important means of protection for people with disabilities. Human rights place authorities in the UK; including the Government, hospitals and social services, under an obligation to treat you with fairness, equality, dignity and respect.

The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to.

Human rights are not just about the law. The Human Rights Act influences the way public services are delivered to people with disabilities. The Human Rights Act says that providers of public services, such as staff at residential homes, educational bodies or hospitals, or carers in your own home, must make sure that they do not breach your human rights.

To read further information on your rights under the Equality Act, go to What's in the Human Rights Act (British Institute of Human Rights)

An easy read guide is also available. Download Your easy read guide to the Human Rights Act (British Institute of Human Rights) [PDF]

The Equality Advisory and Support Service (EASS) can offer advice and support to individuals on issues relating to human rights. For further details, go to the Equality Advisory and Support Service website

Organisations who can offer advice and support

For details of organisations who can offer advocacy, advice and information for people with disabilities, go to the Advocacy, advice and information organisations directory listing