Mental Capacity Act

The Mental Capacity Act (MCA) is designed to protect and empower people who may lack the mental capacity to make their own decisions about their care and treatment.

It applies to people aged 16 and over in England and Wales. It does this in two ways:

  • by empowering people to make decisions for themselves wherever possible, and by protecting people who lack capacity by providing a flexible framework that places individuals at the heart of the decision-making process
  • by allowing people to plan ahead for a time in the future when they might lack the capacity.

The MCA covers decisions from day-today things like what to wear or what shopping to buy, to more serious life-changing decisions like whether to move into a care home or have major surgery.

Examples of people who may lack capacity include those with:

  • dementia
  • a severe learning disability
  • a stroke or brain injury
  • a mental health illness
  • substance misuse.

However, just because a person has one of these conditions does not necessarily mean they lack the capacity to make a specific decision.

A person can lack capacity to make some decisions for example, regarding a complex financial issue but still can make other decisions, for example what to wear or what to buy at the local shop.

The MCA principles

  1. assume a person has the capacity to make a decision themselves, unless it’s proved otherwise.
  2. wherever possible, help people to make their own decisions.
  3. don’t treat a person as lacking capacity to make a decision just because they make an ‘unwise’ decision.
  4. If you make a decision for someone who doesn’t have the capacity, it must be in their best interests.
  5. treatment and care provided to someone who lacks capacity should be the least restrictive of their basic rights and freedoms.

When should capacity be assessed?

Mental capacity may need to be assessed where a person is unable to make a particular decision at a particular time because their mind or brain is affected by illness of disability. Lack of capacity may not be a permanent condition. Assessments of capacity should be time- and decision-specific.

The two-stage functional test of capacity

The MCA sets out a two-stage test of capacity:

Stage 1. Is there an impairment of or disturbance in the functioning of a person’s mind or brain? If so,

Stage 2. Is the impairment or disturbance sufficient that the person lacks the capacity to make a particular decision?

The MCA says that a person is unable to make their own 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.

Every effort should be made to find ways of communicating with someone before deciding that they lack capacity to make a decision based solely on their inability to communicate. Family, friends, carers or other professionals should also be involved.

Best interest’s decision-making

If someone lacks the capacity to make a decision and the decision needs to be made for them, the MCA states the decision must be made in their best interests.

The MCA sets out a checklist to consider when deciding what is in a person’s best interests.

It says you should:

  • encourage participation – do whatever is possible to permit or encourage the person to take part
  • identify all relevant circumstances – try to identify the things the individual lacking capacity would take into account if they were making the decision themselves
  • find out the person’s views – including their past and present wishes and feelings, and any beliefs or values
  • avoid discrimination – don’t make assumptions on the basis of age, appearance, condition or behaviour
  • assess whether the person might regain capacity – if they might, could the decision be postponed?
  • It is vital to consult with others for their views about the person’s best interests.

The roles, bodies and powers supporting the MCA

The MCA also allows people to express their preferences for care and treatment, and to appoint a trusted person to make a decision on their behalf should they lack capacity.

This could take the form of:

Attorneys appointed under Lasting Powers of Attorney (LPAs) – the Act introduces a new form of Power of Attorney which allows people over the age of 18 to formally appoint one or more people to look after their health, welfare and/or financial decisions, if at some time in the future they lack capacity to make those decisions for themselves.

Court of Protection and Deputies – the MCA created a new court and a new public official to protect people who lack capacity and to supervise those making decisions on their behalf. The Court is able to appoint a Deputy, for example, because a person has an ongoing lack of capacity. The Court will tailor the powers of the deputy according to the circumstances of the individual.

Protection for those lacking mental capacity is overseen by:

The Public Guardian – the role of the Public Guardian is to protect people who lack capacity from abuse. The Public Guardian is supported by the Office of the Public Guardian (OPG). The OPG maintains a register of LPAs and EPAs. It also maintains a register of the Court-appointed Deputies and is responsible for supervising them.

Independent mental capacity advocate (IMCA) – IMCAs are a statutory safeguard for people who lack capacity to make some important decisions. This includes decisions about where the person lives and serious medical treatment when the person does not have family of friends who can represent them. IMCAs can also represent individuals who are the focus of adult protection proceedings. The Deprivation of Liberty Safeguards introduced further roles for IMCAs.

It is a criminal offence to ill-treat or wilfully neglect a person who lacks capacity.

Where to find the latest information

For detailed and up to date information about the MCA, best interest’s, power of attorney, court of protection and deputies and independent mental capacity advocates, reference the following websites:

Sources:

www.nhs.uk/conditions/social-care-and-support-guide/making-decisions-for-someone-else/mental-capacity-act

www.gov.uk/make-decisions-for-someone/assessing-mental-capacity