Mental Capacity Act
The Mental Capacity Act 2005 sets out a statutory framework for acting and making decisions on behalf of adults aged 16 years and over who lack the mental capacity to act or make such decisions for themselves. It sets out principles and mechanisms for making welfare decisions, health care decisions and financial decisions for people without the capacity to make those decisions themselves. It also makes clear who can make decisions on their behalf and in which situations and how they should go about this. It also enables people to plan ahead for a time when they may lose capacity.
The Act is underpinned by five principles:
- A presumption of capacity - 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
- The right for individuals to be supported to make their own decisions - people must be given all appropriate help before anyone can conclude that they cannot make their own decisions
- Individuals must retain the right to make what might be seen as eccentric or unwise decisions
- Best interests - anything done for or on behalf of people without capacity must be in their best interest
- Least restrictive intervention - anything done for or on behalf of people without capacity should be the least restrictive of their basic rights and freedom
Mental capacity is the ability of someone to make decisions. These can range from day-to-day decisions, such as deciding what to wear in the morning, what to eat for breakfast, or whether or not to have a shave, to extremely serious ones, like moving home or having an operation.
Some people have difficulty in making decisions, because of many different conditions. Some of these conditions are temporary (like being drunk or under the influence of drugs, and some brain injuries), while other conditions are long term and not likely to change (like learning disability), or may even get worse (like dementia). Some come and go, like certain mental illnesses.
Some people are able to make simple decisions like what to wear in the morning, and what to eat, but cannot make more complicated decisions like making a will or looking after their financial affairs.
Very few people are incapable of making any decisions at all. The Mental Capacity Act makes it absolutely clear that everyone should be assumed to be able to take all their own decisions until it is shown that they can’t. The Act also says that professionals must make every reasonable effort to help someone make their own decision.
The Mental Capacity Act contains five core principles, which must be followed in any assessment of or decision about a person’s capacity.
1. Assumption of capacity
- A person must be assumed to have capacity unless it is established that they lack capacity
2. Maximising decision-making capacity
- A person is not to be treated as unable to make a decision unless all practicable (“doable”) steps have been taken without success
3. Unwise decisions
- A person is not to be treated as unable to make a decision merely because they make an unwise decision
4. Best interests
- An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests
5. Least restrictive alternative
- Before the act is done, or the decision is 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
The Mental Capacity Act 2005 creates for the first time a clear legal structure for the care and treatment of people who have difficulty making decisions. It promotes best practice in supporting people who may lack mental capacity.
The Act sets out in law what help should be given to people should be helped to make decisions, and what happens when people are unable to make decisions (for instance, they lack capacity to make a particular decision).
The Act is there to:
- Strengthen the right of people to make their own decisions and to be supported to do so
- Protect those who may lack capacity to make a particular decision
- Set out in which situations other people can make decisions and act on another person’s behalf, if they are unable to do so
- Ensure people are always involved in decisions that affect them
- Help resolve disputes
In general, the Mental Capacity Act applies to everyone over 16 years of age, although some parts of the Act do not apply to 16 and 17 year olds. Anyone can choose to use the Act in order to plan for the future, in the event of losing mental capacity as a result of illness or injury.
People who may have difficulty making decisions
The government estimates that over two million people will have difficulty making some decisions, although the majority of them will be able to make some decisions for themselves, especially if they are given help.
These include approximately:
- 840,000 people with dementia
- 150,000 people with a severe learning disability
- 1.2 million people with a mild to moderate learning disability
- 120,000 people with a severe brain injury
Many more people with short term difficulties such as strokes, accidents and drug and alcohol use
Many informal, unpaid carers look after their loved ones who lack capacity to make decisions. Usually these carers are family members who have no formal authority to make decisions for their loved ones, but some will have the power to manage the person’s property and affairs, with either Receivership or an Enduring Power of Attorney.
Anyone who is currently a Receiver with Enduring Power of Attorney will become a Deputy after October 2007.
Carers who are Attorneys or Deputies under the Mental Capacity Act will be under a legal obligation to follow the core principles of the Act.
The Mental Capacity Act applies to all staff working with people who may lack capacity to make certain decisions. Staff are obliged to follow the core principles of the Act and to have regard to the Code of Practice to the Act.
These staff include:
People working in a professional capacity, for example:
- Social workers
People who are being paid to provide care or support, for example:
- Care assistants
- Home care workers
- Support workers
- Prison officers
- Paramedics, etc
- Anyone who is a Deputy appointed by the Court of Protection
- Anyone acting as an Independent Mental Capacity Advocate (IMCA)
- nyone carrying out research involving people who cannot make a decision about taking part
Code of Practice: Mental Capacity Act 2005
A number of people will be under a formal duty to have regard to the Code: professionals and paid carers for example, or people acting as attorneys or as deputies appointed by the Court of Protection. For many people, the most important relationships will be with the wide range of less formal carers, close family and friends who know the person best, some of whom will have been caring for them for many years. The Code is also here to provide help and guidance for them.
A hard copy of the Code can be purchased from TSO (The Stationery Office).
ISBN No: 978 0 11 7037465 London: TSO 2007 Cost £15
Telephone: 0870 600 5522
The Department of Health has produced a series of training materials for professionals in the following settings: mental health, residential accommodation, community and primary care, acute hospitals.
These booklets are no longer available in print.
The Mental Capacity Implementation Programme has produced a series of information booklets on making decisions and mental capacity. These are for both professionals and family friends and unpaid carers. The guides can be downloaded from the Justice website.
Department of Health - www.dh.gov.uk
Public Guardian -www.gov.uk/government/organisations/office-of-the-public-guardian
General Medical Council - www.gmc-uk.org
British Psychological Society - www.bps.org.uk
British Medical Association - bma.org.uk
Nurses and Midwifery Council - www.nmc-uk.org/
The Chartered Society of Physiotherapy - www.csp.org.uk
Department of Constitutional Affairs - www.justice.gov.uk/
Mental Capacity Act 2005 - www.opsi.gov.uk/acts/acts2005/pdf/ukpga_20050009_en.pdf
The first core principle of the Act is that a person must be assumed to have capacity to make a decision unless it is evident that they lack capacity.
The legal definition says that someone who lacks capacity 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 a decision
- Weigh up the information available to make a decision
- Communicate their decision
- This could be by any possible means, such as talking, using sign language or even simple muscle movements such as blinking an eye or squeezing a hand
The principle of “best interests” is very well established in Common Law, and only comes into play when it has been established that a person lacks capacity to make a particular decision.
The Mental Capacity Act will confirm the existing Common Law that any act done, or decision that is made on behalf of a person who lacks capacity must be in their best interests.
The Act now places a duty on staff to follow a statutory checklist, before making a decision or acting in someone’s best interest. They must take into account a range of factors, including consulting with those people who know the person best.
The checklist includes the following requirements:
- When someone is working out what is in someone’s best interests, they must not make a decision based merely on the person’s appearance, medical condition or behaviour
- All relevant information needs to be considered
- If the decision can be delayed to give time for the person to regain capacity to make the decision
- Even though the person lacks capacity to make the decision, it is important to involve the person as much as possible in decisions affecting them
- The person’s wishes, feelings, values and beliefs must be taken into account. These may be obtained by talking to friends and relatives, or if the person has made a written statement. See the Planning for the Future web page for information about written statement:
- The views of any family members, carers or other relevant people to care for the person must also be taken into account
Not all these checklist factors will always be applicable, but it is still necessary to consider each of these, even if it is found that they are not relevant to the particular decision.
Having a statutory best interests checklist is an important protection for people who are unable to make decisions for themselves.
The Code of Practice gives guidance to staff on how to help people make decisions for themselves, even when they may have difficulty.
Where practicable, the following steps should be taken:
Providing relevant information
All the relevant information should be given, without using jargon or too much unnecessary detail. If a person has a choice, they should be given information on all the alternatives.
The information should be presented in a way which is easy for the person to understand. If the person has particular difficulties, then these should be taken into account (for instance, sign language, visual aids).
Can anyone else help with communication (for example, a family member, interpreter, speech and language therapist)?
Making the person feel at ease
There may be particular times of day when the person’s understanding is better. The person may feel at ease in a particular place.
The decision may be able to be put off until a later time, when the person is more able to make the decision.
Providing support for the person
A friend, relative or carer may be able to support the person to make choices or express their opinion.
Why is an Independent Mental Capacity Advocate service needed?
In the past, many people who lacked the capacity to make decisions for themselves may not have been listened to. IMCAs safeguard the rights of those with nobody else to speak for them.
For whom will an Independent Mental Capacity Advocate be required?
The IMCA service is provided for any person, aged 16 years or older, who has no one able to support and represent them, and who lacks capacity to make a decision about either:
- A long-term care move
- Serious medical treatment
- Adult protection procedures
- A care review
What are the duties of an Independent Mental Capacity Advocate?
Once an IMCA has been called in, they will have the following duties:
- Support the person who lacks capacity and represent their views and interests to the decision-maker
- Obtain and evaluate information. An IMCA can talk to the person in private and have access to health and social care records which are relevant to the decision in question
- As far as possible, obtain the person’s wishes and feelings, beliefs and values
Establish alternative courses of action
- Obtain a further medical opinion, if necessary
- Prepare a report for the person who called them in
- If an IMCA disagrees with the decision made, they can also challenge the decision-maker.
Who provides the Independent Mental Capacity Advocate service in Norfolk?
There are several things that can be done to prepare for the future, either by setting out some decisions in advance or by letting people know what you would like to happen if you lose the capacity to make decisions.
It can also be helpful for your family, future carers, and for the people you have chosen to make decisions for you, to have your wishes clearly outlined. The new Act allows you to appoint someone else to make decisions for you in the future, should you lack capacity to do this yourself.
From 1 October 2007 a person can also plan in advance and appoint an attorney to make decisions about health and personal welfare decisions for a time when they might lack capacity.
Lasting Powers of Attorney
- What types of decisions can a Lasting Power of Attorney cover?
- How do I make a Lasting Power of Attorney?
- What if I have already made an Enduring Power of Attorney?
Advance Decisions (Living Wills)
- Who can make advance decisions?
- What sort of decisions do they cover?
- What about decisions regarding life-sustaining treatment?
- What if I already have made an advance decision, or “living will”?
A person can also write down or tell people about their wishes and preferences about their future treatment or care. These must be taken into account when determining what is in their best interests.
Such statements can request certain types of treatment, which must be carefully considered, especially if they have been written down, but they will not always dictate the decision the person makes on their behalf as the key issue will be their best interests.
These statements can be about anything, including personal preferences such as having a shower rather than a bath, or wanting to sleep with the light on. However, statements about preferences for a person’s life to be ended cannot be used.
The Court of Protection is a division of the High Court, which has for many years dealt with issues of property and finance for people who do not have the mental capacity to manage their own affairs.
From October 2007 the Court of Protection will have a wider role, not just dealing with finance and property, but will also be able to consider questions about a person’s health and welfare.
The Court of Protection will only deal with very serious matters, or major disputes, and will be able to make declarations as to whether or not a person lacks capacity to make a particular decision, or whether an action taken on someone’s behalf is lawful or not.
The Court of Protection can either make decisions itself, or if there are going to be a number of decisions needed in the future, it will be able to appoint someone to make those decisions on the person’s behalf.
These people will be called deputies, and could either be paid professionals or unpaid carers or relatives. The Court would have to be satisfied that the deputy is an appropriate person to have the authority to make these decisions.
To find out more, you can click on any of the links on this page.
A free elearning package produced by Help the Hospices provides an excellent introduction to the Act and some case examples. See Help the Hospices.
You can download government information booklets on the Mental Capacity Act from the GOV.uk website.
You can access the full text of the Mental Capacity Act and the Code of Practice at The Ministry of Justice website. See The Ministry of Justice.
The Department of Health website gives a summary of the Act and the Code of Practice can also be found on the Office of Public Sector Information website. See Office of Public Sector Information [ PDF file].