mental capacity act
Lasting Power of Attorney and Court Appointed Deputy
IMCA Advocacy Service
Best Interests Decision Making
Mental Capacity Assessment
Advanced Decision to Refuse Treatment
The MCA and Under 18’s
The Decision Maker
The Mental Capacity Act 2005, or MCA as it commonly referred to, became law in 2007. The MCA applies to everyone over the age of 16.
The MCA sets out 5 statutory principles – these are the values that underpin the legal requirements of the MCA:
A person must be assumed to have capacity unless it is established that they lack capacity
A person is not to be treated as unable to make a decision unless all practicable steps to help him or her to do so have been taken without success
A person is not to be treated as unable to make a decision merely because he or she makes an unwise decision
An act done, or decision made, under the MCA on behalf of a person who lacks capacity must be done, or made, in their best interests
Before the act is done, or the decision made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action – in other words, any decisions made on behalf of someone must be the least restrictive possible to achieve the desired outcome.
The purpose of the MCA is to empower people to make decisions about their lives for themselves.
It protects people who lack capacity to make such decisions by providing a person centered framework that places the individual at the heart of the decision making process.
If we do need to make decisions on someone's behalf, we must:
Encourage and do all possible to enable the person's participation.
Identify all relevant circumstances that the person would take into account if they were able to make the decision for themselves.
Find out the person's past or present views, including beliefs and values expressed either by behaviour, in writing or verbally.
Avoid discrimination and do not make assumptions based on age, appearance, condition or behavior.
Assess if the person may regain capacity in time to make the decision for him or herself.
If the decision concerns life saving treatment, the decision maker must not be motivated by a desire to bring about the person's death due to making assumptions about their quality of life.
Consult others – one person should not make decisions based on their views or opinions alone.
Always look for least restrictive ways to meet the person's needs and achieve the desired outcomes in their best interests.
By taking all these factors into account, come to a balanced decision that is in the person's best interests.
Remember that a person may regain capacity to make the decision for themselves, and that decisions may need to be reviewed regularly to ensure they continue to be in best interests, are least restrictive and meet the person's current needs.
The MCA introduced a range of protections for people who lack capacity to make specific decisions for themselves. These include:
The Court of Protection where decisions made on behalf of an incapacitated person can be looked at by a judge.
Independent Mental Capacity Advocates (IMCAs) who are there to make sure the voice of the incapacitated person is heard.
Lasting Power of Attorney: this enables someone over the age of 18 who has the capacity to do so, to 'donate' decision making authority to a trusted person or persons, to be used at a time when capacity to make decisions for themselves is impaired.
The MCA also makes provision for someone over the age of 18, and who has the capacity to do so, to make an Advance Decision to refuse specific medical treatment (s) at a time when they may have lost the capacity to make the decision.
For further information the Mental Capacity Act 2005 Code of Practice is recommended. It covers all the relevant areas of the MCA and gives useful examples of how the legislation can be used.
The Social Care Institute for Excellence (SCIE) website is also a good source of information that is accessible and covers Mental Capacity and Deprivation of Liberty Safeguards.
Mental Capacity is the ability to make a decision.
Anyone assessing someone’s capacity to make a decision for themselves should use the 2 stage test:
Does the person have an impairment of the mind or brain, or is there some sort of disturbance affecting the way their mind works? (It doesn’t matter whether the impairment or disturbance is temporary or permanent).
If so, 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 includes:
Does the person have an understanding of the relevant points of the decision they need to make and why they need to make it?
Is the person able to understand, retain, use and weigh up the information relevant to this decision?
Does the person have a reasonable understanding of the likely consequences of making, or not making, this decision?
Can the person communicate their decision (by talking, using sign language or any other means)? Would the services of a professional (such as a speech and language therapist) be helpful?
When assessing a person’s capacity to make more complex or serious decisions, consider whether there is a need for a more thorough assessment (e.g. by involving a doctor for medical decisions or other professional depending on the nature of the decision to be made)?
An assessment of a person’s capacity must be based on their ability to make a specific decision at the time it needs to be made, and not their ability to make decisions in general. A person may lack capacity to make a decision about one issue but not about others.
An assessment that a person lacks capacity to make a decision must never be based simply on:
Assumptions about their condition or
Any aspect of their behaviour
All practicable steps should be taken to support a person to make their own decisions.
Further information can be found in the Mental Capacity Act 2005 Code of Practice.
An advance decision enables someone aged 18 and over, while still capable, to refuse specified medical treatment for a time in the future when they may lack the capacity to consent to or refuse that treatment.
An advance decision to refuse treatment must be valid and applicable to current circumstances. If it is, it has the same effect as a decision that is made by a person with capacity: healthcare professionals must follow the decision.
Healthcare professionals will be protected from liability if they:
stop or withhold treatment because they reasonably believe that an advance decision exists, and that it is valid and applicable
treat a person because, having taken all practical and appropriate steps to find out if the person has made an advance decision to refuse treatment, they do not know or are not satisfied that a valid and applicable advance decision exists.
If the advance decision refuses life-sustaining treatment, it must:
be in writing (it can be written by a someone else or recorded in healthcare notes)
be signed and witnessed, and
state clearly that the decision applies even if life is at risk.
To establish whether an advance decision is valid and applicable, healthcare professionals must try to find out if the person:
has done anything that clearly goes against their advance decision
has withdrawn their decision
has subsequently conferred the power to make that decision on an attorney, or
would have changed their decision if they had known more about the current circumstances.
Some healthcare professionals may disagree in principle with patients’ decisions to refuse life-sustaining treatment. They do not have to act against their beliefs. But they must not simply abandon patients or act in a way that that affects their care.
Advance decisions to refuse treatment for mental disorder may not apply if the person who made the advance decision is or is liable to be detained under the Mental Health Act 1983.
Reference: Mental Capacity Act 2005 Code of Practice - Chapter 9
Under the Act, many different people may be required to make decisions or act on behalf of someone who lacks capacity to make decisions for themselves. The person making the decision is referred to as the ‘decision-maker’, and it is the decision-maker’s responsibility to work out what would be in the best interests of the person who lacks capacity.
For most day-to-day actions or decisions, the decision-maker will be the whoever is most directly involved with the person at the time.
Where the decision involves the provision of medical treatment, the doctor or other member of healthcare staff responsible for carrying out the particular treatment or procedure is the decision-maker.
Where nursing or paid care is provided, the nurse or paid carer will be the decision-maker.
If the decision relates to care and support or residence then a social worker may be the decision maker.
If a Lasting Power of Attorney (or Enduring Power of Attorney) has been made and registered, or a deputy has been appointed under a court order, the attorney or deputy will be the decision-maker, for decisions within the scope of their authority.
What this means is that a range of different decision-makers may be involved with a person who lacks capacity to make different decisions.
There are also times when a joint decision making process involves a number of people. For example, when a care plan for a person who lacks capacity to make relevant decisions is being put together, different healthcare or social care staff might be involved in making decisions or recommendations about the different elements of the person’s care package.
No matter who is making the decision, the most important thing is that the decision-maker tries to work out what would be in the best interests of the person who lacks capacity.
Reference: Mental Capacity Act 2005 Code of Practise - Chapter 5
The aim of the IMCA service is to provide independent safeguards for people who lack capacity to make certain important decisions and, at the time such decisions need to be made, have no one else (other than paid staff) to support or represent them or be consulted.
The IMCA Advocacy service helps particularly vulnerable people who lack the capacity to make decisions about:
Deprivation of Liberty Safeguards (DoLs)
Serious Medical Treatment
Change of Accommodation
The IMCA can also:
Provide support through Court of Protection processes when challenging a Deprivation of Liberty Safeguard.
Provide support by acting as Litigation Friend when challenging through the Court of Protection process.
The IMCA will:
Be independent of the person making the decision
Provide support for the person who lacks capacity
Represent the person without capacity in discussions to work out whether the proposed decision is in the person’s best interests
Provide information to help work out what is in the person’s best interests
Raise questions or challenge decisions which appear not to be in the best interest of the person
An IMCA should confirm that the person instructing them has the authority to do so and meet the person who lacks capacity in private if possible. The IMCA will obtain the views, wishes beliefs and values of the person and will act in accordance with the principles of the Mental Capacity Act, taking account of the relevant guidance within.
The IMCA may examine any relevant records and gather other information, whilst obtaining the views of anybody else who can give information about the wishes, feelings and beliefs and values of the person. In addition, the IMCA will find out what support the person has received to help them make the decision and find out what the alternative options are.
The IMCA role is to support and represent the person in the decision-making process. Essentially they make sure that the Mental Capacity Act 2005 is being followed.
A person setting up a LPA can appoint anyone to be their attorney, usually family/friend: it gives them authority to make decisions in time of need and/or when the person lacks capacity. Some people even appoint solicitors when they have nobody to represent them.
There are Two types of LPA -:
Health and Care, where the nominated attorney can make decisions about care and treatment and where the person resides. With this type of LPA, decisions about life sustaining treatment can only be made if the LPA document expressly authorises this. Health Professionals MUST check. NB –The person must also lack the capacity to make these decisions.
Property & Affairs is for managing finances, this includes managing state benefits, bank accounts, savings and equity. This confers the same authority as an Enduring Power of Attorney. Unlike the LPA for Health and Care, the person does not need to have lost capacity to manage their financial affairs for their LPA to be 'active'. The person must agree to what the LPA intends to do and can revoke the authority at any time (as long as they still have capacity).
There can be more than one named Deputy for each LPA.
Both of the above LPAs can only be set up when the person has full capacity. If the person's capacity is impaired you cannot proceed with the setting up the LPA.
For the LPA (s) to be Legal and Lawful to use, they MUST be registered with the government body “Office of the Public Guardian” for England & Wales. The Registered LPA document will have an official OPG stamp on it and will be indented at the bottom of the document, with the words “OPG VALIDATED”.
The Attorney can only make decisions in the “Best Interest” of the person and MUST abide by the Mental Capacity Act 2005 Code of Practice Chapter 7.
The person setting up the LPA and the chosen attorney MUST be over the age of 18 years.
A person can instruct a solicitor to set up an LPA or obtain the LPA documents from the Office of the Public Guardian website and complete them accordingly.
Court Appointed Deputy (CAD) -:
Someone can be appointed by the Court of Protection to manage a person's affairs when the person does not have capacity to do so. A person can be a deputy for Property and Affairs and /or Health and Welfare. The Court of Protection can give the person authority to make decisions which are only authorised and instructed by the court.
The Court considers if a person has the skills to conduct the deputy duties, and that they want to carry out the associated responsibilities. The person wishing to act as a deputy can make an application to the “Office of the Public Guardian” or through a Solicitor, although there can be added costs as the deputy may have to attend an official court hearing.
The Deputy acts in the best interest of the person that they are deputise for, and they have to abide by the MCA 2005 Code Of Practice Chapter 8. Further information about LPAs and CADs can be sourced of the Office of the Public Guardian website.
Further information can be found in the MCA 2005 Code of Practice.
Any act done or decision made on behalf of a person who lacks capacity must be made in the person’s best interests. This applies to family carers, paid care workers, lasting power of attorney’s or court appointed deputies. The decisions can be simple like what clothes to wear or can be complex like where to live or whether to have a particular type of medical treatment. As long as the principles of the Act are followed then the decision maker will be protected from liability. There are exceptions to this, when the person has made an advance decision to refuse treatment (refer to chapter 8).
When working out what is in a person’s best interests encourage participation e.g. use simple language or pictures and visit the person at the time and location they are most comfortable? Take into account relevant circumstances that the person would consider themselves. Find out about their views, wishes/ values and beliefs and whether this could influence the decision. Avoid discrimination; do not make assumptions about a person’s best interests on the basis of age, appearance, condition or behaviour. Consider whether the person will regain capacity after receiving medical treatment, if so then can the decision wait until then?
In emergency situations do not wait for capacity to be regained, initiate emergency care. If the decision is relating to life sustain treatment then the best interest decision must not be motivated in any way to bring about the person’s death. Consult with others if it is practical to do so:
Anyone involved in caring for the person
Relatives/friends /or anyone who takes an interest in the person
Lasting power of attorney or court appointed deputy
For decisions about serious medical treatment or where the person should live then consult with an Independent Mental Capacity act Advocate.
Avoid restricting the person’s rights and utilise other options or alternatives that could be least restrictive .Once all of this has been taken into account, weigh up and document these factors in order to work out what is in the person’s best interest including:
How the decision was reached and the reasons
Who was consulted and what factors were considered
There may be occasions when a best interest decision is challenged; in these circumstances seek a second opinion or consult with an advocate or use mediation. If attempts to resolve the situation have failed then a court might need to determine best interest. Seek advice from your health or social care professional.
The Mental Capacity Act 2005 applies to everyone over the age of 16. They have the same rights to the empowerment and protection that the MCA provides as everyone other citizen over the age of 18.
Most of the Act applies to young people aged 16 – 17 years, who may lack capacity to make specific decisions. But there are three exceptions :-
Under 18's cannot make an Advance Decision
The Court of Protection may only make a statutory will for a person ages 18 and over
Under 18's cannot donate a Lasting Power of Attorney
The Act does not generally apply to anyone under the age of 16 but offences of ill treatment of wilful neglect of a person who lacks capacity can also apply to victims younger than 16 (section 44).
The MCA considers the difference between a young person who is:-
not being able to make a decision because of an impairment of, or a disturbance in the functioning of the mind or brain,
and those young people who are not able to make the decision because of some other reason such as being overwhelmed by the implications of the decision, or other influences.
If the decision cannot be made due to a lack of capacity due to the first point then the MCA processes should be adhered to. If the decision cannot be made due to point 2, every effort should be made to support the young person and considering other empowering and protective strategies. The young person must always be fully included in any decision making and every effort must be made to enable them to understand the implications and consequences of their decisions.
For more detailed information please refer to:- The Mental Capacity Act 2005 Code of Practice The Children and Families Act 2014 – in particular Section 80 relating to Parents and young people lacking capacity
The MCA and Under 18's
Anita Lindon | Lorraine Elliott | Paul Harper | Mark Hammond | Deborah Sangster |Robert Ward | John Hutchison
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mental capacity act