Mental Capacity

The Mental Capacity Act (MCA) is designed to protect and empower individuals who may lack the mental capacity to make their own decisions about their care and treatment. It is a law that applies to individuals aged 16 and over.

Someone can lack capacity to make some decisions (for example, to decide on complex financial issues) but still have the capacity to make other decisions (for example, to decide what items to buy at the local shop).

Everyone has the right to make his or her own decisions it is assumed an individual has the capacity to make a decision themselves, unless it is proved otherwise through a capacity assessment. Individuals must be given help to make a decision themselves, for example this might include providing the person with information in a format that is easier for them to understand.

Just because someone makes what those caring for them consider to be an "unwise" decision, they should not be treated as lacking the capacity to make that decision. Everyone has the right to make their own life choices, where they have the capacity to do so.

Where someone is judged not to have the capacity to make a specific decision (following a capacity assessment), any decision made must be in their best interests. Treatment and care provided to someone who lacks capacity should be the least restrictive while still providing the necessary treatment and care. The MCA also allows people to express their preferences for care and treatment in case they lack capacity to make these decisions. It also allows them to appoint a trusted person to make a decision on their behalf should they lack capacity in the future. If someone has no close relative or friend they should also be provided with an independent advocate who will support them to make decisions in their best interest.

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

1) Does the person have an impairment of, or a disturbance in the functioning of, their mind or brain.

2) Does the impairment or disturbance mean the individual is unable to make a specific decision when they need to? Individuals can lack capacity to make some decisions but have capacity to make others, so it is vital to consider whether the individual lacks capacity to make the specific decision.

Capacity can fluctuate – an individual may lack capacity at one point in the day, but may be able to make the same decision at a later time. Individuals should be allowed the time to make a decision themselves.

The MCA says a person must be able to do the following to make a decision

  • understand the information relevant to the decision

  • retain that information

  • use or weigh up that information as part of the process of making the decision

Mental capacity and supporting decision-making

Before deciding an individual lacks capacity to make a decision, appropriate steps must be taken to enable them to make the decision themselves.

For example:

  • Does the individual have all the relevant information they need?

  • Have they been given information on any alternatives?

  • Could information be explained or presented in a way that is easier to understand (for example, by using simple language or visual aids)?

  • Could anyone else help with communication, such as a family member, carer, or advocate?

  • Are there particular times of day when the individual's understanding is better?

  • Are there particular locations where the individual may feel more at ease?

  • Could the decision be delayed until a time when the individual might be better able to make the decision?

If someone is found to lack the capacity to make a decision and such a 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 of things to consider when deciding what's in an individual's best interests. It says you should:

  • Encourage participation – do whatever is possible to encourage the individual 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 individual's views – including their past and present wishes and feelings, and any beliefs or values.

  • Avoid discrimination – do not make assumptions on the basis of age, appearance, condition or behaviour.

  • Assess whether the individual might regain capacity – if they might, could the decision be postponed?

Consulting with others is a vital part of best interest decision-making. People who should be consulted include anyone previously named by the person concerned, anyone engaged in caring for them, close relatives, friends or others who take an interest in their welfare, any attorney appointed under a Lasting Power of Attorney or Enduring Power of Attorney, and any deputy appointed by the Court of Protection to make decisions for the person.

Finding alternatives to making a decision on someone else's behalf

Before somebody makes a decision or acts on behalf of a person who lacks capacity to make a decision or to consent to an act, they must always question if they can do something else that would interfere less with the person's basic rights and freedoms.

This is called finding the "least restrictive alternative". It includes considering whether there is a need to act or make a decision at all. Where there is more than one option, it is important to explore ways that would be less restrictive or allow the most freedom for a person who lacks capacity. However, the final decision must always allow the original purpose of the decision or act to be achieved. Any decision or action must still be in the best interests of the person who lacks capacity. So sometimes it may be necessary to choose an option that is not the least restrictive alternative if that option is in the person's best interests.

Deprivation of Liberty

In certain cases, the restrictions placed upon an individual who lacks capacity to consent to the arrangements of their care may amount to "deprivation of liberty". This must be judged on a case-by-case basis.

Where it appears a deprivation of liberty might occur, the provider of care (usually a hospital or a care home) has to apply to their local authority, who will then arrange an assessment of the individual's care and treatment to decide if the deprivation of liberty is in the best interests of the individual concerned.

If it is, the local authority will grant a legal authorisation. If it is not, the care and treatment package must be changed – otherwise, an unlawful deprivation of liberty will occur. This system is known as the Deprivation of Liberty Safeguards.

If you suspect a deprivation of liberty may occur, the first step should be to talk to the care provider and then possibly the local authority.

Useful Links & Downloads

Deprivation of Liberty Leaflet

Welfare and finance decisions for people who lack Mental Capacity

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