Mental Capacity Act & Deprivation of Liberty Safeguards
The Mental Capacity Act (MCA) provides the legal framework for making decisions on behalf of people who are unable to make them for themselves.
The aim is to ensure people are supported to make their own decisions, without being subject to unnecessary control, and whilst still keeping people safe.
5 statutory principles
1. A person must be assumed to have capacity unless it is established that they lack capacity
Every adult has the right to make their own decisions unless it can be shown they do not have capacity to make the decision. No-one should have their capacity judged on the basis of how they appear, or because they have a diagnosis of dementia. Just because a person does not have capacity to make some decisions, does not mean they are not able to make others. 'Capacity' is not a blanket diagnosis. It relates to the ability to make a particular decision at the time it needs to be made.
2. A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success
Everything practical must be done to help a person make a decision for themselves. For example, this may be helping them to make the decision at a different time of day, providing information in a different format or having different people explain the options to them.
3. A person is not to be treated as unable to make a decision merely because he makes an unwise decision
Everybody has their own values, beliefs, preferences and attitudes. Just because people don't agree with a decision, doesn't necessarily mean the person does not have the capacity to make the decision for themselves.
4. 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
The person's best interests must be the basis for all decisions made and actions carried out on their behalf. This can only be done once it is established that the person lacks the capcity to make the decision for themselves. The person's previous wishes and the opinions of family can help to inform what decision would be in the persons best interests.
5. 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 'least restrictive' option that meets the person's needs, should always be chosen wherever there is more than one option. Care homes must always look for ways to minimise the restrictions being placed on residents while still keeping them safe. For example, if a person is to be prevented from leaving the home and ask to go out, can they be escorted out by a staff member, could they have free access to outside space instead?
Two-stage test for assessing capacity
1. Does the person have an impairment or disturbance that affects the way their mind or brain works
If there is no such impairment or disturbance, then the person must be deemed to have capacity. Dementia is an example of such an impairment.
2. Does the impairment or disturbance mean that they are unable to make a specific decision
To impact capacity, the impairment must prevent the person from making the specific decision at the time it needs to be made. To have 'mental capacity' the person must be able to do all of the following:
a. Understand the relevant information
b. Retain the information in their mind
c. Use or weight that information as part of the decision-making process
d. Communicate their decision
New public bodies and roles
Lasting Powers of Attorney
A person can authorise another person to make decisions on their behalf. This used to be known as an Enduring Power of Attorney (EPA). The MCA replaces the Enduring Power of Attorney (EPA) Act. It also increases the range of different types of decisions that people can authorise others to make on their behalf. There are two types of LPA:
1. Personal Welfare LPAs e.g. decisions about healthcare and medical treatment
2. Property and affairs LPAs i.e. all financial matters
Personal welfare LPAs can only be used once a person no longer has capacity to make those decisions. Property and affairs LPAs can be used whilst the person still has capacity if the person has chosen to grant that authority straight away.
The Court of Protection and court appointed deputees
The Court of Protection is a specialist court which deals with decision-making for adults who may lack capacity. This includes personal welfare decisions as well as property and affairs decisions. Applications can be made to the Court of Protection where there are disagreements about these decisions.
The Court has the power to appoint deputees to make decisions on the person's behalf. This applies when the person had not set up any EPAs or LPAs whilst they still had the capacity to do so. Court appointed deputees are usually for the purpsoes of managcing financial affiars. Deputies for personal welfare decisions will only be required in the most difficult cases.
The Independent Mental Capacity Advocate (IMCA) Service
The purpose of the IMCA service is to help particularly vulnerable people who lack the capacity to make important decisions about serious medical treatment and changes of accommodation. It can be used by people who have no family or friends that it would be appropriate to consult about those decisions. IMCAs will work with and support people who lack capacity and represent their views to those who are working out their best interests.
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