The Mental Capacity Act 2005, fully implemented in 2009, is designed to protect and empower individuals who may lack the mental capacity to make their own decisions about their care and treatment. This law applies to individuals aged 16 and over
People who lack mental capacity
As stated on the legislation.gov.uk website – for the purposes of the Mental Capacity Act 2005:
A person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.
The Mental Capacity Act was fully implemented on 1 April 2009
The key finding regarding the Act by the House of Lords in 2014 was that: Vulnerable adults are being failed by the Act designed to protect and empower them. Social workers, healthcare professionals and others involved in the care of vulnerable adults are not aware of the Mental Capacity Act, and are failing to implement it
What is the Mental Capacity Act?
The Mental Capacity Act (MCA) is designed to protect and empower individuals who may lack the mental capacity to make their own decisions about their care and treatment. It is a law that applies to individuals aged 16 and over.
Examples of people who may lack capacity include those with:
- a severe learning disability
- a brain injury
- a mental health condition
- a stroke
- unconsciousness caused by an anaesthetic or sudden accident
However, just because a person has one of these conditions does not necessarily mean they lack the capacity to make a specific decision.
Someone can lack capacity to make some decisions (for example, to decide on complex financial issues) but still have the capacity to make other decisions (for example, to decide what items to buy at the local shop).
The MCA says:
- Everyone has the right to make his or her own decisions. Health and care professionals should always assume an individual has the capacity to make a decision themselves, unless it is proved otherwise through a capacity assessment.
- Individuals must be given help to make a decision themselves. This might include, for example, providing the person with information in a format that is easier for them to understand.
- Just because someone makes what those caring for them consider to be an “unwise” decision, they should not be treated as lacking the capacity to make that decision. Everyone has the right to make their own life choices, where they have the capacity to do so.
- Where someone is judged not to have the capacity to make a specific decision (following a capacity assessment), that decision can be taken for them, but it must be in their best interests.
- Treatment and care provided to someone who lacks capacity should be the least restrictive of their basic rights and freedoms possible, while still providing the required treatment and care.
The MCA also allows people to express their preferences for care and treatment in case they lack capacity to make these decisions. It also allows them to appoint a trusted person to make a decision on their behalf should they lack capacity in the future.
People should also be provided with an independent advocate who will support them to make decisions in certain situations, such as serious treatment or where the individual might have significant restrictions placed on their freedom and rights in their best interests.
How ‘mental capacity’ is determined
The MCA sets out a two-stage test of capacity.
1) Does the individual concerned have an impairment of, or a disturbance in the functioning of, their mind or brain, whether as a result of a condition, illness, or external factors such as alcohol or drug use?
2) Does the impairment or disturbance mean the individual is unable to make a specific decision when they need to? Individuals can lack capacity to make some decisions but have capacity to make others, so it is vital to consider whether the individual lacks capacity to make the specific decision.
Also, capacity can fluctuate with time – an individual may lack capacity at one point in time, but may be able to make the same decision at a later point in time. Where appropriate, individuals should be allowed the time to make a decision themselves.
In relation to the second question, the MCA says a person is unable to make a decision if they cannot:
- understand the information relevant to the decision
- retain that information
- use or weigh up that information as part of the process of making the decision
If they aren’t able to do any of the above three things or communicate their decision (by talking, using sign language, or through any other means), the MCA says they will be treated as unable to make the specific decision in question.
Mental capacity and supporting decision-making
Before deciding an individual lacks capacity to make a particular decision, appropriate steps must be taken to enable them to make the decision themselves.
- Does the individual have all the relevant information they need?
- Have they been given information on any alternatives?
- Could information be explained or presented in a way that is easier to understand (for example, by using simple language or visual aids)?
- Have different methods of communication been explored, such as non-verbal communication?
- Could anyone else help with communication, such as a family member, carer, or advocate?
- Are there particular times of day when the individual’s understanding is better?
- Are there particular locations where the individual may feel more at ease?
- Could the decision be delayed until a time when the individual might be better able to make the decision?
Making best interests decisions for someone
If someone is found to lack the capacity to make a decision and such a decision needs to be made for them, the MCA states the decision must be made in their best interests.
The MCA sets out a checklist of things to consider when deciding what’s in an individual’s best interests. It says you should:
- Encourage participation – do whatever is possible to permit or encourage the individual to take part.
- Identify all relevant circumstances – try to identify the things the individual lacking capacity would take into account if they were making the decision themselves.
- Find out the individual’s views – including their past and present wishes and feelings, and any beliefs or values.
- Avoid discrimination – do not make assumptions on the basis of age, appearance, condition or behaviour.
- Assess whether the individual might regain capacity – if they might, could the decision be postponed?
Consulting with others is a vital part of best interest decision-making. People who should be consulted include anyone previously named by the person concerned, anyone engaged in caring for them, close relatives, friends or others who take an interest in their welfare, any attorney appointed under a Lasting Power of Attorney or Enduring Power of Attorney, and any deputy appointed by the Court of Protection to make decisions for the person.
Finding alternatives to making a decision on someone else’s behalf
Before somebody makes a decision or acts on behalf of a person who lacks capacity to make a decision or to consent to an act, they must always question if they can do something else that would interfere less with the person’s basic rights and freedoms.
This is called finding the “least restrictive alternative”. It includes considering whether there is a need to act or make a decision at all.
Where there is more than one option, it is important to explore ways that would be less restrictive or allow the most freedom for a person who lacks capacity.
However, the final decision must always allow the original purpose of the decision or act to be achieved.
Any decision or action must still be in the best interests of the person who lacks capacity. So sometimes it may be necessary to choose an option that is not the least restrictive alternative if that option is in the person’s best interests.
Deprivation of liberty
In certain cases, the restrictions placed upon an individual who lacks capacity to consent to the arrangements of their care may amount to “deprivation of liberty”. This must be judged on a case-by-case basis.
Where it appears a deprivation of liberty might occur, the provider of care (usually a hospital or a care home) has to apply to their local authority, who will then arrange an assessment of the individual’s care and treatment to decide if the deprivation of liberty is in the best interests of the individual concerned.
If it is, the local authority will grant a legal authorisation. If it is not, the care and treatment package must be changed – otherwise, an unlawful deprivation of liberty will occur. This system is known as the Deprivation of Liberty Safeguards.
If you suspect a deprivation of liberty may occur, the first step should be to talk to the care provider and then possibly the local authority.
Advance statements and decisions
An advance statement is a written statement that sets down a person’s preferences, wishes, beliefs and values regarding their future care. It is not legally binding.
The aim is to provide a guide for anyone who might have to make decisions in someone’s best interests if they have lost the capacity to make decisions or communicate their decision.
An advance statement can cover any aspect of a person’s future health or social care. This could include:
- how they want any religious or spiritual beliefs they hold to be reflected in their care
- where they would like to be cared for – for example, at home or in a hospital, nursing home or hospice
- how they like to do things – for example, if they prefer a shower instead of a bath, or like to sleep with the light on
- concerns about practical issues – for example, who will look after their pet if they become ill
Find out more about making advance statements.
An advance decision (sometimes known as an advance decision to refuse treatment, an ADRT, or a living will) is a legally binding decision that allows someone aged 18 or over, while still capable, to refuse specified medical treatment for a time in the future when they may lack capacity to consent to or refuse that treatment.
An advance decision must be valid and applicable to current circumstances. If it is, it has the same effect as a decision made by a person with capacity – healthcare professionals must follow the decision.
If the advance decision refuses life-sustaining treatment, it must:
- be in writing, signed and witnessed
- state clearly that the decision applies even if life is at risk
People who make an advance decision may wish to consider letting their family, friends and carers know about it.
Find out more about advance decisions.
Lasting Powers of Attorney (LPA)
You can grant a Lasting Power of Attorney (LPA) to another person (or people) to enable them to make decisions about your health and welfare, or decisions about your property and financial affairs. Separate legal documents are made for each of these decisions, appointing one or more attorneys for each.
An Enduring Power of Attorney (EPA) under the previous law was restricted to making decisions over property and affairs, which includes financial affairs and accessing the person’s information. An EPA made before the Mental Capacity Act came into force on October 1 2007 remains valid.
Powers of attorney can be made at any time when the person making it has the mental capacity to do so, provided they are 18 or over. Both an EPA and LPA must be registered. An LPA can be registered at any time, but a personal welfare LPA will only be effective once the person has lost the capacity to make their own decisions.
When acting under an LPA, an attorney must:
- make sure the MCA’s statutory principles are followed
- check whether the person has the capacity to make that particular decision for themselves – if they do, a personal welfare LPA cannot be used and the person must make the decision
In addition, the Court of Protection will be able to appoint deputies who can also take decisions on health and welfare, as well as in financial matters, if the person concerned lacks the capacity to make a decision.
They will come into action when the court needs to delegate an ongoing series of decisions rather than one decision. If the person concerned already has an LPA appointed, they won’t normally need a deputy as well.
The Office of the Public Guardian registers LPAs and EPAs and supervises court-appointed deputies. It provides evidence to the Court of Protection and information and guidance to the public. The Public Guardian works with a range of agencies, such as the financial sector, police and social services, to investigate concerns.
The Court of Protection
The Court of Protection oversees the operation of the Mental Capacity Act and deals with all issues, including financial and serious healthcare matters, concerning people who lack the mental capacity to make their own decisions.
The court also tries to resolve all disputes when the person’s carer, healthcare worker or social worker disagree about what’s in the person’s best interests, or when the views of the attorneys conflict in relation to property and welfare.
The court hears important cases, such as whether the NHS should withdraw treatment, whether a serious medical treatment decision is in a person’s best interests, or whether it is in a person’s best interests to be deprived of their liberty. Cases can be brought to the court by family members, as well as advocates and professionals involved in decisions.
Professionals’ Court of Protection’ duties under the Mental Capacity Act
The Mental Capacity Act applies to all professions – doctors, nurses, social workers, occupational therapists, health care assistants, and support staff. These staff and their employers have a duty to ensure they are trained in its implementation.
All staff working in the NHS and in social care are expected to have an understanding of the act as it relates to their own responsibilities. Most trusts and local authorities will have a Mental Capacity Act lead who provides specialist advice on the implementation.