Mental Capacity Act
We have a responsibility to meet the needs of people, usually aged 16 years or over, who need assistance with making decisions, and those who may not have the ability to make important decisions regarding their future social care, nursing, medical or safeguarding needs.
The main purpose of the Mental Capacity Act is to provide a legal framework for acting and making decisions on behalf of adults who lack the capacity to make particular decisions for themselves.
The five principles are outlined in section 1 of the act. These are designed to protect people who lack capacity to make particular decisions, but also to maximise their ability to make decisions, or to participate in decision making, as far as they are able to do so.
There are 5 key principles:
- a presumption of capacity must be assumed
- individuals are to be supported to make decisions
- individuals have a right to make what may seem unwise decisions
- all decisions must be based on protecting an individual's best interests
- decisions must be the least restrictive to an individual's rights and freedoms
It is important to know whether someone has mental capacity to make a decision. Whether they have or not will affect the option for dealing with their affairs, such as whether it is still possible to make a lasting power of attorney (LPA).
If someone can make a decision for themselves, they are said to have the mental capacity to make that decision. If they aren't able to make a decision, because of some form of mental disability, they are said to lack the mental capacity to make that decision.
The disability may be either temporary or permanent and could be caused by:
- brain injury
- a stroke
- alcohol or drug misuse
- the side-effect of medical treatment
- any other illness or disability
A person must be assumed to have capacity unless it is established they don't.
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. It tries to resolve 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 in relation to property and welfare conflict.
The role of the Office of the Public Guardian is to protect anyone who lacks mental capacity to make decisions for themselves. It registers lasting powers of attorney and enduring powers of attorney and supervises court-appointed deputies. It provides evidence to the Court of Protection and guidance to the public.
The public guardian works with a range of agencies, such as the police and adult care services to investigate concerns.
The independent mental capacity advocate (IMCA) helps people who:
- do not have mental capacity
- have not given powers of attorney to anyone
- do not have a court-appointed deputy, and
- have no friends or family to speak on their behalf
They will help the person who lacks capacity to make decisions about serious medical treatment and long-term accommodation in a hospital or care home.
The Social Care Institute for Excellence (SCIE) has a summary that presents an overview of the Mental Capacity Act (MCA) 2005, which is important to health and social care practice.
Read more about the Mental Capacity Act
MCA myths and facts
The MCA is sometimes misunderstood - below is a list of the eight most common myths that includes a factual explanation for each of them.
Myth 1: If I have a concern about a decision someone is making, it is up to them to prove to me that they have the capacity to make it.
Fact 1: It is the other way around. The presumption that people have capacity is fundamental to the MCA. The person does not have to prove anything. The burden to prove a lack of capacity (to make a specific decision) always lies with the person who thinks it may be necessary to make a decision on their behalf.
Myth 2: If someone is making an unwise decision, you must let them do it.
Fact 2: Whilst the presumption of capacity is a foundational principle, you should not hide behind it to avoid responsibility to assess capacity. If you reasonably suspect a person may lack capacity to take a relevant decision, especially if the consequence of what they are wanting to do is likely to lead to serious consequences for them, it would be inadequate for you simply to record (for instance) “as there is a presumption of capacity, the decision was the person’s choice.”
Myth 3: If a person has been assessed as lacking capacity to make a decision then this applies to all future decisions too.
Fact 3: Mental capacity is time and decision specific. For example, a person may recover from a head injury. Or, with focused support, a person with a learning disability may increasingly gain capacity, and thus the freedom to spend increasing quantities of their own money.
Myth 4: The person needs to have a detailed understanding of every aspect of the decision they are making in order to demonstrate that they have capacity.
Fact 4: This is not necessary. The person only needs to understand the key information, often called the ‘salient factors’ relevant to the decision.
Myth 5: A person with dementia will not have capacity to make any decisions.
Fact 5: You must not assume someone lacks capacity because they have a particular condition.
Myth 6: It is not appropriate to help people to understand their options when assessing capacity. Otherwise, you would be helping them to cheat.
Fact 6: Principle 2 of the MCA requires you to take all ‘practicable steps’ before it is possible to conclude someone cannot make a decision. If a person no longer remembers, you must explain all the pieces of information that you have identified as being relevant, or salient, to the decision. Consider what time of day is best for the person. Might a loved one help them to understand? Would pictures, objects of reference or transporting the person to a particular place help maximise their capacity?
Myth 7: A person needs to be able to retain information after the decision has been made.
Fact 7: This is not true. To have capacity, people only need to be able to retain the salient information for long enough to weigh their options, and communicate their decision. The MCA states ‘the fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.’
Myth 8: My next of kin can make decisions for me if a lose capacity.
Fact 8: The term ‘next of kin’ is commonly used, but does not give people any legal decision-making authority. Making a Lasting Power of Attorney (LPA) is the best way to give someone you trust the legal authority to make decisions for you if you lose mental capacity. There are 2 types, one for property and finance, and one for health and welfare decisions.
Learning Disabilities Mortality Review (LeDeR) Programme MCA update 2019
The LeDeR Programme has undertaken reviews that have highlighted a number of emerging themes and ongoing issues. NHS England's Learning Disability Programme set up a LeDeR Learning into Action Group to look at issues relating to the MCA. The aim of the work is to complement existing information and requirements of organisations in relation to legal obligations under the MCA.
The LeDeR Programme's March 2019 newsletter update about the MCA is attached to this page.