Mental capacity means being able to make your own decisions. The Mental Capacity Act 2005 (MCA) aims to ensure that individuals participate as fully as possible in all decisions relating to them.
It also protects those who cannot make their own decisions about a particular matter for any reason whether temporary or permanent. It applies to people aged 16 and over.
A person’s capacity may vary over time or may depend on the type of decision that needs to be made.
Anyone caring for or supporting an individual may assess capacity. The assessment must be specific to a decision that needs to be made, at the time the decision needs to be made.
For medical decisions where consent is needed for treatment or examination, a doctor or healthcare professional will decide whether or not the person has capacity to consent.
The starting point must always be to assume that a person has the capacity to make a specific decision, unless it can be established that they lack capacity.
Anyone assessing someone’s capacity to make a decision for themselves should use the two-stage test of capacity.
1. The first question you must answer is 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? (It doesn’t matter whether the impairment or disturbance is temporary or permanent.)
Many factors can affect a person’s capacity such as:
2. If so, the second question you must answer is, 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?
Assessing ability to make a decision
The person will be unable to make the particular decision if after all appropriate help and support to make the decision has been given to them. This could be through providing information in a more simple way, such as using easier words or pictures, trying at different times of the day or when they are in better health or having a family member, friend or an independent person to help them express their choice.
Understand the information relevant to that decision, including understanding the likely consequences of making, or not making the decision. Retain that information. Use or weigh that information as part of the process of making the decision.
Does the person have general understanding of what decision they need to make and why they need to make it?
Does the person have a general understanding of the likely consequences of making or not making, this decision?
Communicate their decision (whether by talking, using sign language or any other means).
Can the family, friend, carer or advocate support the person’s communication?
Would the services of a speech and language therapist be helpful?
Although there is no single definition of what would be in a person’s best interests, the Code of Practice gives a non-exhaustive checklist of things that must be considered when another person is making a decision. You need to weigh up these factors in order to work out what is in the persons best interest.
Do whatever's possible to permit or encourage the person 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 person's views
Including their past and present wishes and feelings - these may have been expressed in writing or through behaviours or habits.
Any beliefs or values – e.g. religious, cultural, moral political that may influence the decision.
Don't make assumptions on the basis of age, appearance, condition or behaviour.
Assess whether the person might regain capacity
For example after receiving medical treatment. If they might, could the decision be postponed?
If it is practical to do so, consult other people for their views about the persons best interest. In particular consult with:
Avoid restricting the persons rights
See if there are other options that may be less restrictive.
If restraint is being considered, there needs to be a reasonable belief that it is necessary in order to prevent harm to the person. It needs to be a proportionate response to the likelihood of the person suffering harm, and the seriousness of that harm.
The Mental Capacity Act begins with establishing five key principles to be followed whenever working within the framework of the Act. These are as follows:
1. Presumption of capacity
Start off by thinking that everyone can make their own decisions.
2. Being supported to make their own decisions
Give the person all the support you can to help them make decisions. To justify an intervention you must show that you have taken all practicable steps to help them to make the decision. This might include using a different form of communication, treating medical condition which may be affecting the persons capacity, a structured learning programme to improve the persons capacity.
3. Unwise decisions do not necessarily mean lack of capacity
A person is not to be treated as unable to make a decision merely because s/he makes a decision that others think is unwise.
4. Decisions must be taken in the person’s best interests
Anytime someone does something or decides for someone who lacks capacity, it must be in the person’s best interests. The MCA provides a non-exhaustive checklist of factors that decision-makers must work through in deciding what is in a person’s best interests:
5. Carefully consider actions to ensure the least restrictive option is taken
The decision maker should always consider whether it is possible to provide the intervention or support in a less restrictive way.
MCA Code of Practice:Professionals and carers must have regard to the Code and record reasons for assessing capacity or best interests. If anyone decides to depart from the Code they must record their reasons for doing so.
Record KeepingThe Code of Practice advised that assessments of capacity by professionals should be recorded. You should keep a record of the process for working out best interest relevant for each decision. If you are not following the written wishes of the person now lacking capacity the reasons must be recorded.
Is there a Lasting Power of Attorney (LPA) or Deputy appointed for health and welfare? Does the person have an Advance Decision in place?
LPA is a legal document that appoints one or more people to make decisions on a person's behalf if they cannot make a decision at a time they need to (for example because of an accident or an illness).There are two types of LPA, one covering health and welfare and the other covering property and financial affairs. An applicaton can be made for one or both areas depending on need
Deputies are appointed by the Court of Protection, they are usually close relatives or friends of the person who needs help making decisions.
Advance Decisions lets family, carers and health professionals know the persons wishes about refusing treatment if they are unable to make or communicate those decisions themselves.
Independent Mental Capacity Advocates (IMCA): NHS and Local Authorities all have a duty to make sure that IMCAs are available to represent people who lack capacity to make specific decisions. IMCAs are independent and generally work for advocacy providers who are not part of a Local Authority or the NHS. The IMCA service is provided for any person aged 16 years or older, who has no one able to support and represent them, and who lacks capacity to make a decision about either:
Council for Disabled ChildrenDecision Making Toolkit
Council for Disabled ChildrenCapacity and EHC plans