MENTAL CAPACITY

All you need to complete the Mental Capacity training can be found on this page. Please start by watching the short video below.

Introduction

The Mental Capacity Act 2005 (MCA) came into force in April 2007 and has implications upon the way in which the care industry operates.

The MCA applies to everyone who works in health and social care that is involved in the care, treatment or support of people over 16 years of age, living in England and Wales, who are unable to make all or some decisions for themselves. This could be caused by a psychiatric illness, a learning disability, dementia, mental health problems, a brain injury, stroke or many other conditions.

What is Mental Capacity?

Having mental capacity means that a person is able to make their own decisions. The MCA says that a person is unable to make a particular decision if they cannot do one or more of the following four things:

Understand information given to them
Retain that information long enough to be able to make the decision
Weigh up the information available to make the decision
Communicate their decision – this could be by talking, using sign language or even simple muscle movements such as blinking an eye or squeezing a hand

Everyone can have problems making decisions now and again, but the Mental Capacity Act (MCA) is specifically designed to cover situations where someone is unable to make a decision because their mind or brain is affected, for instance, by illness or disability, or the effects of drugs or alcohol.

The type of decisions that are covered by the MCA will range from day-to-day decisions such as what to wear or eat, through to more serious decisions such as where to live, whether to have a certain medical procedure or control of finances.

It may be the case that a person lacks capacity to make a particular decision at a particular time because their brain or mind is affected, for instance, by illness or disability, or the effects of drugs or alcohol. It may be the case that the person lacks capacity to make a particular decision at a particular time but this does not mean that a person lacks all capacity to make any decisions at all.

EXAMPLE

Robert has a learning disability, and it has been assessed that he does not have the mental capacity to make a decision about where he should live, but this does NOT necessarily mean that he cannot decide what to eat, wear and do each day.

The five principles are:

Principle 1. 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. This means that you cannot assume that someone cannot make a decision for themselves just because they have a particular medical condition or disability.

Principle 2. People must be supported as much as possible to make their own decisions before anyone concludes that they cannot make their own decisions. This means that you should make every effort to encourage and support the person to make the decision for him/herself.

Principle 3. People have the right to make what others might regard as unwise or eccentric decisions. Everyone has his or her own values, beliefs and preferences, which may not be the same as those of other people. You cannot treat them as lacking capacity for that reason.

Principle 4. Anything done for or on behalf of a person who lacks mental capacity must be done in the person’s best interests.

Principle 5. Anything done for, or on behalf of, people without capacity should be the least restrictive of their basic rights and freedoms. This means that when you do anything to or for a person who lacks capacity you must choose the option that is in their best interests and interferes the least with their rights and freedom of action.

Helping people to make decisions

The following short video helps you to understand the things that you need to consider when supporting people to make decisions.

When there is a reason to believe that a person lacks capacity to make a decision, you will be expected to consider the following:

Has everything been done to help and support the person to make a decision?

Does this decision need to be made without delay?

If not, is it possible to wait until the person does have the capacity to make the decision for himself or herself? For example, a person may be drowsy or disorientated because of the medication they are taking.

If the person’s ability to make a decision still seems in question, then a more formal mental capacity assessment will need to take place.

Assessing Capacity

Many of you at some point may be involved in the assessment process regarding someone’s mental capacity. It is important to remember, you should always start from the assumption that the person has capacity to make the decision in question (Principle 1). Of course, the more serious the decision, the more formal the assessment of capacity will need to be.

You should always bear in mind that just because someone lacks capacity to make a decision on one occasion, that does not mean that they will never have capacity to make a decision in the future, or about a different matter.

The Test to Assess Capacity

You would not normally make an assessment of capacity without involving family, friends and/or carers or an Independent Mental Capacity Advocate (IMCA) if one has been appointed. This will depend on the situation and the decision that needs to be made.

You should never express an opinion without first conducting a proper assessment of the person’s capacity to make a decision.

Best Interests

If a person has been assessed as lacking capacity, then any action taken or decision made for or on behalf of that person must be made in his or her best interests (Principle 4).

The person who has to make the decision is known as the ‘decision-maker’ and will normally be the carer responsible for the day to day care of the individual, or a professional such as a doctor, nurse or social worker where decisions about treatment, care arrangements or accommodation have to be made.

What is ‘best interests’?

Working out what is in someone else’s best interests may be difficult, and the Act requires people to follow certain steps to help them work out whether a particular act or decision is in a person’s best interests. In some cases, there may be disagreement about what someone’s best interests really are.

As long as the person who acts or makes the decision has followed the steps to establish whether a person has capacity, and done everything they reasonably can to work out what someone’s best interests are, the law should protect them.

Best interests checklist

THE MCA has a best interests checklist which outlines what someone needs to consider before taking an action or decision for someone when they lack capacity:

Consider whether the person is likely to regain capacity

Where practicable, encourage the person to participate in the decision

Consider the person's past and present wishes and feelings (including any relevant written statement)

The beliefs and values that would be likely to influence the person's decision if they had capacity (e.g.cultural background, religious affiliation).

The other factors that the person would be likely to consider if they were able to do so (e.g. emotional bonds, family obligations)

Must consult with anyone named by the person to be consulted, anyone engaged in caring for the person or interested in their welfare, a donee of a Lasting Power of Attorney (LPA), a deputy appointed by the Court of Protection

Have identified and preferred the least restrictive alternative for the person's rights and freedom of action

Lasting Power of Attorney (LPA)

An LPA allows people to nominate someone they trust to make decisions on their behalf, should they they lose capacity in the future. An LPA can cover health and personal welfare, and property and financial affairs.

The person making the LPA is referred to as the “donor”. It is a legal document and decisions that the attorney makes are as valid as any made by the donor. An attorney is bound by the principles set out in the Act; for example, any decisions they make must be made in the best interests of the person lacking capacity.

IMPORTANT - A valid LPA must include a certificate completed by an independent third party (the certificate provider), which confirms that, in their opinion, the donor understands the scope and purpose of the LPA; the donor was not put under undue pressure to make the LPA; and that the certificate provider is not aware of anything else that would prevent the LPA being made. As a doctor, you may be asked to act as the certificate provider.

A personal welfare attorney application appoints an LPA to make decisions about an individual’s welfare. This includes healthcare decisions, and consenting on their behalf to treatment and social care decisions – for example, where the person should live and who with.