The Mental Capacity Act explained

Published: 06 October, 2015
The Mental Capacity Act explained

We all make decisions about lots of things in our lives; this ability is called mental capacity. For a number of reasons, people may, on occasions, have difficulties making all, or some, decisions. 

People in this situation may be considered to be lacking capacity for that specific decision. The Mental Capacity Act provides the legal framework for acting and making decisions on behalf of vulnerable individuals who lack the mental capacity to make a particular decision. 

Decisions can range from what a person wants to wear, to where a person wants to live, or whether to have serious or life changing medical treatment.  Everyone working with and/or caring for an adult who may lack capacity to make specific decisions must make reference to the Mental Capacity Act and the Code of Practice when making a decision, or when acting on behalf of that person.

The same rules apply whether the decisions are life-changing events or everyday matters.

So what is the Mental Capacity Act?
The Mental Capacity Act is a law that came into force in 2007.  The Act is designed to protect and empower individuals aged 16 and over who may lack capacity to make their own decisions about their care and treatment.

A lack of capacity may be due to a:

  • Learning disability
  • Mental health problem
  • Brain injury (for example, stroke or physical trauma to the brain)
  • Dementia
  • Alcohol or drug misuse
  • Confusion (for example from an infection, side effects of medical treatment or substance misuse)
  • Autism
  • Unconsciousness
  • Neurological conditions

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).

What are the five key principles?

The whole Act is underpinned by a set of five key principles which are:-

  • A presumption of capacity - every adult has the right to make his or her own decisions and must be assumed to have capacity to do so unless it is proved otherwise.
  • Individuals being supported to make their own decisions - a person must be given all practicable help before anyone treats them as not being able to make their own decisions
  • Unwise decisions - just because an individual makes what might be seen as an unwise decision, they should not be treated as lacking capacity to make a decision
  • Best interests - an act done or decision made under the Act for or on behalf of a person who lacks capacity must be done in their best interests
  • Least restrictive option - anything done for or on behalf of a person who lacks capacity should be the least restrictive of their basic rights and freedoms

How Mental Capacity is determined?

There is a two stage test:-

  1. Does the person have an impairment of, or a disturbance in the functioning of their mind or brain?
  2. Does the impairment or disturbance mean that the person is unable to make a specific decision when they need to? What does this mean?

A person is unable to make a decision if they cannot:

  1. Understand information about the decision to be made
  2. Retain that information in their mind
  3. Use or weigh that information as part of the decision-making process
  4. Communicate their 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 Mental Capacity Act says they will be treated as unable to make the specific decision in question.

It is important to note that, 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.

Who Should Assess Capacity?

The person who assesses an individual’s capacity to make a decision will usually be the person who is directly concerned with the individual at the time the decision needs to be made. This means that different people will be involved in assessing someone’s capacity to make different decisions at different times.

For most day to day decisions, this will be the person caring for them at the time a decision must be made.

Example: A care worker might need to assess if the person can agree to being bathed, or may need to assess if the person can dress appropriately to the weather.

A district nurse may need to assess if a person can consent to having a dressing changed, or consent to a flu vaccination.

A paramedic may need to assess a person’s capacity to consent to treatment/ A doctor or healthcare professional must assess capacity for a person to consent to treatment before any treatment or examination is carried out.

Assessment of capacity can be informal or formal, everyday decisions are generally informal such as what to eat or wear, more complex decisions such as consent to medical treatment are likely to need to be more formal assessments which may mean a number of people need to be part of the assessment of capacity.

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.

For example:

  • 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, 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.

An example of this is : A person is a high risk of falling especially at night in a care home, there have been a number of occasions when they have got out of bed and walked out of their room and have fallen. The options are 1.that the person could have bed rails on the bed to prevent them from getting out of bed and so preventing falls. 2. Pressure mat on the floor by the bed so that staff are alerted that the person is up and can assist straight away.

The least restrictive option in this case is to have a pressure mat on the floor, as it does not restrict the person’s freedom to move.

However, the final decision must always allow the original purpose of the decision or act to be achieved.

For more information about mental Capacity Act

There are a number of websites that you can find more information about all aspects of the Mental Capacity Act these are as follows:

  1. https://www.gov.uk/government/collections/mental-capacity-act-making-decisions
  2. http://www.nhs.uk/Conditions/social-care-and-support-guide/Pages/mental-capacity.aspx

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Written by: Alison Harvey

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