Access to healthcare that maintains positive physical and mental health is arguably one of the most important rights contained in the UN Declaration of Human Rights.  From hospital to community, ante-natal to end-of-life, waiting-list to emergency, we want to be able to access the best possible treatment and care for ourselves and our loved ones as possible. These are times when some of the most serious decisions of our lives have to be made but are also times when we may be at our most vulnerable, in need of someone to speak up on our behalf and to make sure our views and wishes are being heard. Sometimes we just need someone who can direct us through the system and help us to raise concerns or do so on our behalf when we need them to. That’s why we’re here. 

What We Do

Everyday we work with people who need, are receiving or have received medical care and treatment from NHS or private health services. Our work includes:

Health services

The Secretary of State for Health, all NHS bodies, private and voluntary sector providers supplying NHS services, and local authorities in the exercise of their public health functions are required by law to take account of the NHS Constitution (for England) in their decisions and actions. The NHS constitution states that:

The NHS belongs to the people. It is there to improve our health and wellbeing, supporting us to keep mentally and physically well, to get better when we are ill and, when we cannot fully recover, to stay as well as we can to the end of our lives. 

Seven key principles guide the NHS in all it does. They are underpinned by core NHS values.

The NHS' 7 key Principles

  1. The NHS provides a comprehensive service, available to all
  2. Access to NHS services is based on clinical need, not an individual’s ability to pay
  3. The NHS aspires to the highest standards of excellence and professionalism
  4. The patient will be at the heart of everything the NHS does
  5. The NHS works across organisational boundaries
  6. The NHS is committed to providing best value for taxpayers’ money
  7. The NHS is accountable to the public, communities and patients that it serves

The values of the NHS

  • Working together for patients
  • Respect and dignity
  • Commitment to quality of care
  • Compassion
  • Improving lives
  • Everyone counts

The NHS Constitution also summarises the rights of patients using healthcare services and pledges made by the NHS to each of these types of right. These rights relate to:

  • Access to health services
  • Quality of care and environment
  • Nationally approved treatments, drugs and programmes
  • Respect, consent and confidentiality
  • Informed choice
  • Involvement in your healthcare and the NHS
  • Complaint and redress

These rights and pledges can be read in full here

At My Rights we are committed to supporting people to receive what the law and the NHS Constitution sets out as rightfully theirs. This is in relation to NHS services or other providers supplying NHS services.

NHS and Private Healthcare

Whether the care and treatment you are seeking, are receiving or have received is from an NHS service or a private or voluntary sector provider funded by the NHS, you may have the legal right to relevant advocacy help. The table below shows what advocacy help a person may have a right to when using different types of healthcare service.

Healthcare Service

NHS Complaints Advocacy Independent Mental Capacity Advocacy

Independent Mental Health Advocacy

Dentists

GPs

NHS 111, out-of-hours and urgent care

Independent doctors and clinics

NHS Trust Acute Hospital services

NHS Trust Community health services

NHS Trust Mental Health services

NHS Trust Substance Misuse Services
NHS Ambulance Services
Independent Acute Hospitals
Independent Ambulance services
Independent community health services  
Hospices
Independent Mental Health services
Independent substance misuse services
Prisons and secure settings
Children and young people’s services

Mental Health

At My Rights we are passionate about working with children and young people affected by mental illness. Government figures show that one in four adults in England have a mental illness, and a third of families include someone with a mental health problem. Overall, for people under 65, nearly 40% of all ill-health is caused by mental illness.

However, the rights of people experiencing mental illness are challenged by a growth in detention of people in hospital under the Mental Health Act 1983 and a quarter of core NHS services designed for people experiencing mental illness being rated as inadequate or requiring improvement in 2017.

In addition, the Care Quality Commission has recently found that less than half the people who had interacted with community mental health teams felt that their concerns were listened to and taken seriously.

We see a clear role for organisations like My Rights in improving outcomes for people experiencing mental illness and to ensure the NHS is working to deliver improved services to prevent mental illness, respond to people in acute mental health crisis and to deliver person-centred treatment and care for those in recovery.

Mental Capacity Act 2005

Briefly, what is the Mental Capacity Act 2005?

The Mental Capacity Act 2005 is an Act of parliament for the purpose of providing rights, duties and safeguards relating to people aged 16 or over who lack mental capacity to make a particular decision or take a particular action for themselves at the time the decision or action needs to be taken. This includes decisions or actions that are serious or life-changing or relate to day-to-day matters. It is a law for both England and Wales.

Anyone working with or caring for an someone 16 or over who may lack capacity to make specific decisions must comply with the Act when making decisions or acting for that person, when the person lacks the capacity to make a particular decision for themselves. In a healthcare setting, the Mental Capacity Act 2005 applies to all aspects of treatment and care.

Section 1 of the Act sets out the five ‘statutory principles’ – the values that underpin the legal requirements in the Act. These aim to protect people who lack capacity and help them take part, as much as possible, in decisions that affect them.

What are the 5 Statutory Principles of the Act?

From section 1 of the Mental Capacity Act:

  1. A person must be assumed to have capacity unless it is established that they lack capacity.
  2. A person is not to be treated as unable to make a decision unless all practicable steps to help them to do so have been taken without success.
  3. A person is not to be treated as unable to make a decision merely because they make an unwise decision.
  4. An act done, or decision made, under the Act for or on behalf of a person who lacks capacity must be done, or made, in their best interests.
  5. Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.

These principles mean that a person aged 16 or over should be presumed able to make a decision for themselves – no matter what their age, appearance, behavior or any condition they have may be – unless an appropriate assessment of their mental capacity to make that decision finds otherwise. Assessing a person’s mental capacity involves a two-stage test, asking:

  1. Does the person have an impairment of the mind or brain, or is there some sort of disturbance affecting the way their mind or brain works (for example, an intellectual disability, dementia, a head injury or drug or alcohol use)? It does not matter whether the impairment or disturbance is temporary or permanent. This part of the ‘test’ is often referred to as the ‘diagnostic test’.
  2. If so, does that impairment or disturbance mean that the person is unable to make the decision in question at the time it needs to be made? This part of the ‘test’ is often referred to as the ‘functional test’.

At this point, principles 2 and 3 of the Act are crucial to the process of assessing capacity. The person assessing mental capacity must ensure that everything practical has been done to help the person being assessed to make the relevant decision before they can then be assessed as lacking mental capacity and must also ensure that the person is not considered as lacking capacity because other people think their decision is unwise. For this reason it is important for the assessor to be aware of the person’s values, beliefs, preferences and attitudes as well as their own and possibly other people’s.

What does it mean to be 'unable to make a decision?

The Mental Capacity Act defines a person as unable to make a decision if they cannot:

  • Understand information about the decision to be made (the Act calls this ‘relevant information’)
  • Retain that information in their mind (meaning being able to hold the information in their mind long enough to use it to make an effective decision)
  • Use or weigh that information as part of the decision-making process, or
  • Communicate their decision (by talking, using sign language or any other means).

The Code of Practice for the Mental Capacity Act states that the first three points should be applied together. If a person cannot do any of these three things, they will be treated as unable to make the decision. The fourth only applies in situations where people cannot communicate their decision in any way. This definition of being unable to make a decision is the same for people who may be permanently unable to make a decision as well as those with fluctuating or temporary capacity. The assessment itself can be challenged by the person being assessed, other professionals, family, friends or an advocate. Where disagreement cannot be resolved, the Court of Protection can rule on whether a person has capacity to make the decision covered by the assessment.

What happens when a person lacks mental capacity and a decision needs to be made or action needs to be taken?

As principle 4 of the Act states: an act done, or decision made, under the Act for or on behalf of a person who lacks capacity must be done, or made, in their best interests. This is the same whether the person making the decision or acting is a family carer, a paid care worker, an attorney, a court-appointed deputy, or a health or social care professional, and whether the decision is a minor issue – like what to wear – or a major issue, like whether to provide a particular type of medical treatment.

As long as these acts or decisions are in the best interests of the person who lacks capacity to make the decision for themselves, or to consent to acts concerned with their care or treatment, then the decision-maker or carer will be protected from liability.

There are two circumstances when the best interests principle does not apply. The first is where someone has previously made an advance decision to refuse medical treatment while they had the capacity to do so. Their advance decision should be respected when they lack
capacity, even if others think that the decision to refuse treatment is not in their best interests. The second concerns the involvement in research, in certain circumstances, of someone lacking capacity to consent.

The term ‘best interests’ is not actually defined in the Act. This is because so many different types of decisions and actions are covered by the Act, and so many different people and circumstances are affected by it.

However, section 4 of the Act explains how to work out the best interests of the person, setting out a checklist of common factors that must always be considered by anyone who needs to decide what is in their best interests in that particular situation. This is commonly referred to as the ‘best interests checklist’. The Code of Practice states that the checklist should only be the starting point and that in many cases, extra factors will need to be considered.

What is the 'Best Interests Checklist'?

A person acting or making a decision on behalf of a person lacking mental capacity must:

  1. Not make assumptions about what is in their best interests merely on the basis of the person’s age, appearance, condition or aspect of their behaviour.
  2. Consider whether it is likely that the person will at some point have capacity in relation to the action or decision and, if so, when that is likely to be for the purpose of determining whether the action or decision can be postponed until that time.
  3. Allow and encourage the person to participate, or improve their ability to participate as fully as possible in the act or decision affecting them, as much as it is reasonable and practical to do so.
  4. Not be motivated by a desire to bring about the person’s death where a decision or action relates to life-sustaining treatment.
  5. Consider the person’s past and present wishes and feelings (in particular, any relevant written statement they made when they had capacity), the beliefs and values that would be likely to influence their decision and any other factors that they would be likely to consider if they were able to do so, so far as any of these can reasonably be obtained. 
  6.  Take into account the views of anyone named by the person as someone to be consulted on the matter (or matters of that kind), anyone engaged in caring for the person or interested in their welfare, any donee of a lasting power of attorney or any deputy appointed for the person by the Court of Protection in regard to what would be in the person’s best interests and, in particular, as to the the person’s past and present wishes, etc as above. Where none of the above can be found, to instruct a Independent Mental Capacity Advocate (IMCA) for decisions where the Act says an IMCA must be instructed.

Further Reading: Mental Capacity Act 2005; Mental Capacity Act 2005 Code of Practice

To learn more about nhs complaints advocacy, independent mental capacity advocacy (IMCA) or independent mental health advocacy (IMHA) click on a service under ‘services’ in the main menu.