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Mental Capacity Act

The Mental Capacity Act (MCA) is designed to protect and help people aged 16 and over who lack the mental capacity to act or make decisions for themselves. It sets out:

  • What help should be given to people in making care, welfare and financial decisions
  • Who can make decisions on their behalf
  • In which situations decisions can be made on their behalf 

It also enables people to plan ahead for a time when they may lose capacity.

The MCA is underpinned by five core principles:

  • Every adult has the right to make his or her own decisions and must be assumed to have capacity to do so unless it’s proved otherwise
  • 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 could be eccentric or unwise decisions
  • Anything done for or on behalf of people without capacity must be in their best interest
  • Anything done for or on behalf of people without capacity should be the least restrictive of their basic rights and freedom

The MCA applies to all professions working with people who may lack capacity to make decisions. This includes doctors, nurses, social workers, care assistants and support workers.

What is mental capacity?

Mental capacity is the ability of someone to make decisions. These can range from day-to-day decisions, such as deciding what to eat for breakfast, or whether to have a shave or not, to life-changing ones, like moving home or having an operation.

There are a range of conditions which may affect a person’s mental capacity. These include:

  • Brain injuries
  • Stroke
  • Dementia
  • Severe learning disabilities
  • Mental health illness

The legal definition of someone lacking capacity is that 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 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 Independent Mental Capacity Advocate service

The IMCA service is provided for any person, aged 16 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

POhWER provides an IMCA service in Norfolk.  For further information about this service, visit the POhWER website.

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
  • Obtain the person’s wishes and feelings, beliefs and values as far as possible
  • 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.

Planning for a future lack of mental capacity

There are several things that can be done to prepare for the future. You can set out some decisions in advance or let 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. 

You can grant Lasting Power of Attorney (LPA) to another person, or people, to enable them to make decisions about your health and welfare or financial affairs. We’ve provided more information about LPA and making decisions for someone else.

Advance statements and decisions

An advance statement is a written statement that sets down a person’s preferences for future health or social care, but it’s not legally binding.

An advance decision, sometimes also known as a living will, is a legally binding decision. It allows you to decide, while still capable, to refuse specified medical treatment at a time in the future. It must be made in writing, signed and witnessed.

Further information

You can download government information booklets and the MCA Code of Practice from the GOV.UK website.

The NHS website also has information about the MCA and making advance statements and decisions.

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