Mental Capacity Act

What is the Mental Capacity Act?

This page contains information on the Mental Capacity Act 2005 and what it means for people living in Wiltshire:

Introduction

The Mental Capacity Act 2005 for England and Wales was passed in 2005 and implemented in 2007. It provides a statutory framework for decision making for people over the age of 16 who are unable to make certain decisions for themselves because of “mental incapacity”.

People lacking capacity will include those with dementia, learning disability, mental health problems, brain damage, toxic confusional state and physical injury or illness. The mental incapacity may be permanent or temporary. The Mental Capacity Act 2005 includes guidance on a broad range of decisions regarding personal welfare, medical and healthcare decisions, as well as financial decisions. The act sets out safeguards to empower and protect a person who is assessed as not having mental capacity.

The act makes it clear that any assessment of a person’s capacity must be ‘decision specific’. This means that:

the assessment of capacity must be about the particular decision that has to be made at a particular time and is not about a range of decisions
an inability to make complex decisions, does not mean that the person cannot make simple decisions

Key principles

There are 5 important things that are set out in the act to think about:

Presume capacity - start off by thinking that a person can make their own decision. Every adult has the right to make his or her own decision and must be assumed to have capacity to do so, unless proven otherwise.
Give individuals the support they need to make decisions before concluding that they cannot - steps must be taken to promote the person’s participation by providing them with information pertinent to the decision in hand and practicable support.
Individuals should not be treated as lacking capacity to make a decision based on others taking a view that it is unwise or eccentric.
Anything done for, or on behalf of, someone without capacity, must be in their “best interests” - a decision which is arrived at by working through a checklist of principles within the act.
Anything done for or on behalf of a person who lacks capacity, must be the least restrictive option of their basic rights and freedoms.

What does the act do?

The act tells people what to do to help an individual make their own decision; how to work out if they can make their own decision and what to do if they cannot.

It incorporates good practice into statute and introduces a process for those making decisions to use.

It sets out a single test for assessing capacity which is a ‘decision specific test’ (covering emergency decisions; day-to-day and significant decisions, including where there are a series of minor decisions which together become significant).

It covers a wide range of decisions on personal welfare (including health care) and financial matters, as well as substitute decision-making by attorneys or court appointed ‘deputies’. It also clarifies the position where no such formal process has been adopted.

It includes rules to govern research involving individuals who lack capacity and provides for independent mental capacity advocates to represent and provide support in relation to certain decisions.

It puts in place a code of practice which provides guidance to all those working with and/or caring for adults who lack mental capacity, including family members, professionals and carers. It describes the responsibilities when acting or making decisions with, or on behalf of, individuals who lack the capacity to make these decisions for themselves. It focuses on those who will have a duty of care to a person lacking capacity and explains how the legal rules set out in the legislation work in practice.

The code also provides information on how to obtain more detailed guidance from other sources, where this is particularly relevant.

There are certain categories of people (such as doctors, social workers and paid carers) who are under a duty to have regard to the code when acting in relation to a person who lacks capacity. Other people, who are not placed under this legal duty, will still be expected to follow the guidance of the code.

The act offers appropriate protection for carers (both family members and unpaid carers), as well as health and social care professionals, who act in the reasonable belief that they are doing so in the person’s ‘best interests’, providing the principles of the act are followed.

It sets out a criminal offence of ‘ill treatment or wilful neglect’ under section 44 as part of other measures to safeguard vulnerable adults.

To evidence ill treatment it must either be deliberately or recklessly undertaken, whether or not actual harm was caused. “Wilful neglect” is not defined, but the code of practice states that it usually means that a person has deliberately failed to carry out an act they knew they had a duty to carry out. The offence can be committed by:

any person caring for someone who lacks capacity or where there is reasonable belief, they lack capacity
a person appointed under a lasting power of attorney or an enduring power of attorney created by the person lacking capacity
a deputy appointed by Court of Protection for the person lacking capacity

It allows for advance decisions to refuse treatment - except in cases where people are detained under the Mental Health Act for treatment for mental disorder, where this treatment is governed by part 4 of the Mental Health Act 1983. The Mental Capacity Act sets out the provisions to enable adults aged 18 and over (who have capacity) to make an advance decision to refuse medical treatment for times when they may lack capacity. It also puts in safeguards and procedures in relation to advance decisions, to protect the rights and interests of people who lack capacity - while enabling respect of any previous qualifying advance decisions.

It established the role of an independent mental capacity advocacy (IMCA) service for those individuals who lack mental capacity and have no friend, relative or unpaid carer to make a decision in their ‘best interests’. In Wiltshire, this is provided by The Advocacy People.

The act also created a public body to support the statutory framework, designed around the needs of those individuals who lack capacity:

It provides recourse, where necessary and at the appropriate level, to the Court of Protection to deal with all personal welfare (including health care) and financial decisions on behalf of adults who are lacking capacity. The Court of Protection has jurisdiction to make orders and declarations and to appoint substitute decision makers where a person lacks mental capacity.

The act has established lasting powers of attorney and deputies - this has replaced enduring powers of attorney (EPA) as the primary way of choosing a decision maker to act in the event of a loss of mental capacity. In addition to property and affairs (which EPAs provide powers in respect of), people will be able to appoint an attorney to make decisions about their personal welfare, including healthcare, for a time when they may lack capacity to make decisions for themselves. It has not been possible to make any new EPAs since 1 October 2007, however, existing EPAs will remain valid and continue until the ‘donor’ (person lacking capacity) dies. If an existing EPA has not been registered it will need to be registered with the Office of Public Guardian when the person loses capacity.

The Office of the Public Guardian maintains a register of LPAs and court appointed deputies; supervises deputies; directs Court of Protection visitors to visit and report on LPA attorneys, deputies or the person lacking capacity; receives reports from deputies or attorneys; provides reports to the Court of Protection and deals with representations and complaints about the way in which attorneys or deputies are exercising their duties.

What is mental incapacity, and how is it assessed?

Section 2 of the Mental Capacity Act states that for the purposes of the act “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.”

This is referred to as the diagnostic test. If the diagnostic test is met and establishes that a person lacks capacity to make a particular decision, the person taking the action and identified in the act as the ‘decision maker’, should apply the ‘functional test’ as set out in section 3 of the act.

Section 2(3) of the act states that a lack of capacity cannot be established merely by reference to; a) a person’s age or appearance, or b) a condition or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity.

The Section 3 (Functional) Test:

An individual is unable to make a decision for themselves if they are unable;
a) to understand the information relevant to the decision;
b) to retain that information;
c) to use or weigh that information as part of the process of making the decision;
d) to communicate his decision (whether by talking, using sign language, or any other means).

An inability to satisfy any 1 of these 4 conditions would render the person incapable.

Who assesses capacity?

When someone suspects that a person may lack capacity to make a particular decision at the time it needs to be made, because of an impairment of or disturbance in the functioning of the mind or brain, the test of capacity must be carried out. The ‘decision maker’ can usually be identified as the person ‘taking the action’. For many decisions that may be an informal carer - they do not need to be experts in assessing capacity, but they do have to have reasonable grounds to suspect that the person lacks capacity if they intend to intervene.

Best interests

It is a key principle of the act that all steps and decisions taken for someone who lacks capacity must be taken in the person’s best interests. Determining what is in a person’s best interests requires consideration of all the relevant circumstances.

A person trying to work out the best interests of a person who lacks capacity to make a particular decision should:

Encourage participation - do whatever is possible to enable the person to take part in making the decision for themselves.
Identify all relevant circumstances - identify all the things that the person who lacks capacity would take into account if they were making the decision for themselves.
Find out the person’s views - including the person’s past and present wishes and feelings - these may have been in writing, through behaviour or habit or expressed verbally. Consider any beliefs and values: moral, religious, political and cultural that would be likely to influence the decision. Include any other factors the person themselves would be likely to consider if they were making the decision or acting for themselves.
Avoid discrimination - do not make assumptions about someone’s best interests simply on the basis of the person’s age, appearance, condition or behaviour.
Assess whether the person might regain capacity - consider whether the person is likely to regain capacity to make the decision for themselves (e.g. after receiving medical treatment or recovering from the effects of surgery or substance use).

Can the decision wait?

If the decision concerns life sustaining treatment - do not be motivated by a desire to bring about the person’s death. Assumptions should not be made about a person’s quality of life.

Consult others - raise a discussion with others who may have a view on what is in the person’s best interests and whether they have any information about the person’s wishes, feelings, beliefs and values. In particular consult with:

anyone previously named by the person as someone to be consulted on either the decision in question or on a similar issue
anyone engaged in caring for the person
close relatives, friends or others who take an interest in the person’s welfare
any attorney appointed under an LPA or EPA made by the person
any deputy appointed by the Court of Protection.

For decisions about major medical treatment or where a person should live where there is no one in the aforementioned category with whom to consult, an independent mental capacity advocate (IMCA) must be consulted.

Through the consultation process, remember that the person still has a right to confidentiality, so only information relevant to the decision should be shared.

Avoid restricting the person’s rights - check whether there are any other options that may be less restrictive of the person’s rights and freedom. Are the proposed arrangements justified, necessary and a proportionate response to the person otherwise suffering serious harm?

Take a balanced approach - weigh up all of these factors in order to decide what is in the person’s best interests.

Disputes or disagreements

Sometimes people will disagree about:

person’s capacity to make a decision
what is in their best interests
a decision someone is making on their behalf
an action someone is taking on their behalf

The code of practice makes suggestions for ways to avoid disputes and arrangements for settling disputes and disagreements:

ensure that communication is effective and that time is spent listening to and discussing concerns being raised by others
ensure that the various options are set out in a way that people can understand
consider whether a colleague could talk with family members or other professionals or offer a second opinion
offer to seek the view of an independent professional/expert
ensure that the person who lacks capacity has access to an advocate so that their wishes and feelings are represented
arrange a meeting or case conference with those involved to discuss matters in detail
where the situation is not urgent, allow those in disagreement time to review the options being presented
consider the use of mediation

Where agreement cannot be reached the Court of Protection is ultimately the arena for making these decisions and application should be made as soon as it becomes apparent that the disagreement cannot be resolved.

Further Information

Using the Mental Capacity Act - Institute for Social Care Institute for Excellence (YouTube)

Using the mental capacity act in the community - a video by Hounslow & Richmond Community Healthcare NHS Trust (YouTube)

There is an eLearning module available via our Learning Hub - Statutory & Mandatory Training: Mental Capacity Act & Deprivation of Liberty Safeguards

Wiltshire Self Neglect & Hoarding Forum