Mental Capacity Act
The Mental Capacity Act 2005 (MCA) creates a framework to provide protection for people who cannot make decisions for themselves. It contains provision for assessing whether people have the mental capacity to make decisions, procedures for making decisions on behalf of people who lack mental capacity and safeguards. The underlying philosophy of the MCA is that any decision made, or action taken, on behalf of someone who lacks the capacity to make the decision or act for themselves must be made in their best interests.
The MCA came into force on 1 October 2007. It is supported by a Code of Practice.
This briefing will look at the definition of capacity and the structures and safeguards provided by the MCA.
The MCA Code of Practice
The Code of Practice to the MCAis an official document that places certain legal duties on health and social care professionals. It also offers more general guidance and information to anyone caring for someone who may lack capacity to make a decision. The MCA should be interpreted using the Code of Practice, which gives explanations and examples of the MCA’s provisions.
To whom does the MCA apply?
The MCA applies in England and Wales. It affects anyone whose mental capacity to make decisions is affected by (what the MCA refers to as) "an impairment of, or a disturbance in the functioning of, the mind or brain." In some cases, a person’s capacity may be permanently affected, perhaps because they have a form of dementia, a learning disability or have suffered a brain injury. But in others, the person’s capacity might be affected only for a temporary period, perhaps because they are confused or unconscious.
It must be remembered that just because a person has a mental health diagnosis or is detained under the Mental Health Act 1983 does not necessarily mean that they lack capacity to make decisions for themselves. The MCA applies to people with mental health problems only when they experience a mental health problem that affects their ability to make a particular decision. For some people, the ability to make certain decisions is permanently affected as a result of their experience of mental illness. However, many people who experience mental health problems are capable of making all of their own decisions. For others, the ability to make some decisions is affected occasionally and only for short periods.
The MCA principles
The MCA is governed by five core principles. These can be summarised as follows:
· Presumption of capacity(section 1(2) MCA).Every adult has the right to make their own decisions if they have the capacity to do so. Family carers and healthcare or social care staff must assume that a person has the capacity to make decisions, unless it can be established that the person does not have capacity
· Maximising decision making capacity(section 1(3) MCA). People should receive support to help them make their own decisions. Before concluding that someone lacks capacity to make a particular decision, it is important to take all possible steps to try to help them reach a decision themselves.
· Right to make unwise decisions(section 1(4) MCA). People have the right to make decisions that others might think are unwise. A person who makes a decision that others think is unwise should not automatically be labelled as lacking the capacity to make a decision.
· Best interests(section 1(5) MCA). Any act done for, or any decision made on behalf of, someone who lacks capacity must be in their best interests.
· Least restrictive option(section 1(6) MCA). Any act done for, or any decision made on behalf of, someone who lacks capacity should be the least restrictive option possible.
What does "lacking capacity" mean?
Section 2 of the MCA states: "…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". The impairment or disturbance can be permanent or temporary.
The phrases ‘in relation to a matter’ and ‘at the material time’ indicate that capacity must be assessed on a decision-by-decision basis. Capacity is not a permanent status and so people should not be described as having or lacking capacity. Instead, when considering someone’s mental capacity a health or social care professional should ask, "Is this person, at this particular time, capable of making this particular decision?"
Some people may have fluctuating capacity because their mental health changes from day to day. For example, a person who hears distressing voices may be unable to make a certain decision when the voices are at their most distressing but be able to make the same decision on a day when they are not hearing the voices.
The level of capacity needed by a person also depends on the decision to be made. For example, a person probably needs a lower level of mental capacity to make decisions about everyday matters, such as what to eat or where to go, than they do when they are deciding whether to buy a new home or get married.
Section 3 of the MCA provides a fuller definition of how to assess whether someone lacks capacity to make a decision. It states that a person is unable to make a decision if he or she is unable to do one or more of the following things:
· Understandthe information relevant to the decision
· Retainthe information for long enough to be able to make a decision
· Use or weigh up the information as part of the process of making the decision
· Communicatethe decision by any possible method, such as talking, using sign language, squeezing someone’s hand and so on.