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The Mental Capacity Act

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The Mental Capacity Act (MCA) 2005

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 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 years and over. A person’s mental capacity (ability) may vary over time and/or may depend on the type of decision that needs to be made.

Anyone caring for or supporting an individual may assess capacity where they are the person proposing the intervention. The assessment must be specific to the decision that needs to be made, at the time the decision needs to be made. Mental capacity is therefore time and decision specific, not a fixed notion of a person’s overall competence.

For health and care interventions and medical decisions, informed consent is always needed for treatment or examination; the doctor or healthcare professional who is proposing the intervention will have to assure themselves whether or not the person has capacity (ability) to give (or withhold) informed consent to the proposed intervention. Therefore ‘Consent’ and ‘Capacity’ can be viewed as two sides of the same coin.

The 5 principles of the Mental Capacity Act

five principles

  1. A presumption of capacity
  2. Individuals are supported to make their own decision
  3. Unwise decisions
  4. Best interests
  5. Less restrictive option

These are as follows:

1. Presumption of capacity

Start off by thinking that everyone can make their own decisions. Ask yourself, “does it appear that this person can make this decision?” Are you assured that they have understood? If not, apply principle 2 (below).

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 and realistic steps to help them to make the decision; such as explaining the risks and benefits to help them to make an informed choice and decide whether to give or withhold their consent. This might also include using a different form of communication, treating a medical condition which may be affecting the persons capacity (such as a urinary tract infection), or a structured learning programme to improve the persons capacity.

3. Unwise decisions do not necessarily mean lack of capacity

Keep in mind that just because the person has made a choice in one area of their lives that seems to you unwise it doesn’t automatically mean that they lack capacity in a different choice at a different time.

Remember: one person’s seemingly unwise decision is another person’s calculated risk. However; if you have tried all practicable steps to support them to make the choice themselves, they are unlikely to regain capacity and/or the decision cannot be delayed, and support has not been successful then apply principles 4 and 5 (below).

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:

Remember: In law, the role of ‘next of kin’ does not confer consent giving rights. Any best interest decision must be in the person’s best interest NOT solely the best interest of services or family or professionals.

5. Carefully consider actions to ensure the less 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. Is there a less restrictive and or intrusive option that will achieve the desired outcome?

Mental capacity assessments

The starting point must always be to assume that a person has the capacity (ability) to make a specific decision, unless it can be established that they lack capacity. The person does not have to ‘prove’ they have capacity.

A person’s capacity must always be assessed specifically in terms of their capacity to make a decision at the time it needs to be made.

You must treat everyone equally. You cannot decide that someone lacks capacity based upon assumptions regarding age, appearance, about their condition or behaviour. For example; any scars, features linked to Down’s syndrome, muscle spasms caused by cerebral palsy, as well as aspects of appearance like skin colour, tattoos and body piercings, or the way people choose to dress (including religious dress).

The person must be placed at the very heart of the decision-making process. It is important to take all practicable steps to try and support and help people decide for themselves.

Anyone assessing someone’s capacity to make a decision for themselves should use the two-stage test of capacity.

One – 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:

Two – 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?"

What proof of lack of capacity does the Act require?

Anybody who claims that a person lacks capacity should be able to show on the balance of probabilities, that the person lacks capacity to make a particular decision, at the time it needs to be made. This means being able to show that it is more likely than not that the person lacks the capacity to make the decision in question at the time it needs to be made. The person does not have to ‘prove’ that they have capacity.

Assessing ability to make a decision

This can be broken down into three questions:

  1. Is the person unable to make the decision?

  2. Is there an impairment or disturbance in the functioning of the person’s mind or brain?

  3. Is the person’s inability to make the decision because of the impairment or disturbance?

Another useful way to look at assessing a person’s ability to make a decision is to ask yourself:

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

  1. Understand information about the decision to be made (the Act calls this ‘relevant information’) including understanding the likely consequences of making, or not making the decision.

  2. Retain that information in their mind (long enough to make the decision).

  3. Weigh or use that information as part of the decision-making process, or

  4. Communicate their decision (by any means).

The first three should be applied together; ideally in the form of conversation. If a person cannot do any of these three things, they will be judged as unable to make the decision, at the time it needs to be made.

The fourth only applies in situations where people cannot communicate their decision in any way, whether by talking, using sign language or any other means.

Ask yourself:

In conclusion, ask yourself:

Understanding information about the decision to be made

It is important not to assess someone’s understanding before they have been given relevant information about a decision. Every effort must be made to provide information in a way that is most appropriate to help the person to understand. Quick or partial explanations are not acceptable unless the situation is urgent.

Relevant information includes:

Examples of effective communication to support the person understand the relevant information include:

  1. A person with a learning disability may need somebody to read information to them. They might also need illustrations to help them to understand what is happening. Or, they might stop the reader to ask what things mean. It might also be helpful for them to discuss information with an advocate.

  2. A person with anxiety or depression may find it difficult to reach a decision about treatment in a group meeting with professionals. They may prefer to read the relevant documents in private. This way they can come to a conclusion alone and ask for help if necessary.

  3. Someone who has a brain injury might need to be given information several times. It will be necessary to check that the person understands the information. If they have difficulty understanding, it might be useful to present information in a different way (for example, different forms of words, pictures or diagrams). Written information, audiotapes, videos and posters can help people remember important facts.

It is only after all practicable steps to support the person to understand have been unsuccessful can you look at taking the decision for the person in their best interest. You cannot make a best interest decision for someone who has the capacity to make the decision themselves.

Is the decision in the persons best interest?

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.

Assess whether the person might regain capacity

For example, after receiving medical treatment. If they might, could the decision be postponed? If so, do so.

Encourage participation

Do whatever's possible to encourage and support the person to take part and as far as they're able. At its heart the MCA is an empowering piece of legislation.

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 and political that may influence the decision.

Identify all relevant circumstances

Try to identify the things the individual lacking capacity would take into account if they were making the decision themselves.

It is not substitute decision making which is where you put yourself in the situation and ask yourself, “if this was me what would I choose?”

Avoid discrimination

Don't make assumptions on the basis of age, appearance, condition or behaviour.

Consult others

If it is practical to do so, consult other people for their views about the persons best interest. In particular consult with:

What else do you need to consider?

Consent for treatment

Before any treatment or intervention on offer can be given to a person, legal authorisation must be obtained, ask yourself, “Under what legal framework?” For most this will be the authority of their informed consent. Remember, even where a Lasting Power of Attorney (LPA) for health and welfare is in place, do not assume that the person cannot consent to the particular decision at the time it needs to be made. Supported decision making remains, especially for clinical decisions.

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.

Always consider if this could be a deprivation of the persons liberty and ask yourself:

Deprivation of Liberty Safeguards (DoLS) at a glance

The 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.

The code is at the time of writing (November 2020) which will introduce the Liberty Protection Safeguards (LPS) scheme to replace the Deprivation of Liberty Safeguards (DoLS) scheme.

The MCA Code of Practice
PDF, 975KB, 301 pages

Record keeping

The 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.

Deputies

Read more about Deputies

Advance decisions

Learn more about Advance Decisions

Independent mental capacity advocates (IMCA)

Independent Mental Capacity Advocates (IMCA)
PDF, 232KB, 42 pages

Other resources

BMA Mental Capacity Act Toolkit

GMC Decision Making Tool

Royal College of Psychiatrists

Care Quality Commission

Council for Disabled Children Decision Making Toolkit

Council for Disabled Children Capacity and EHC plans

SCIE MCA resources

39 Essex Street MCA Newsletters

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