The Mental capacity Act (MCA) 2005 applies to everyone involved in the care, treatment, and support of:
– people who are 16 and above who are unable to make decisions for themselves.
– people who are 18+ who have capacity and choose to plan for their future.
The Act also provides support and guidance for less formal carers.
The MCA 5 statutory principles are the benchmark and must underpin all acts carried out and decisions taken in relation to the Act. Anyone caring for or supporting a person who may lack capacity could be involved in assessing capacity and must follow the two stage test.
The MCA is to empower those in health and social care to assess capacity themselves rather than rely on expert testing. Understanding and using the MCA supports practice for example the application of the Deprivation of Liberty Safeguards.
All professionals have a duty to comply with the code of practice. If capacity is lacking follow the checklist described in the Code to work out the best interests of the individual concerned.
5 Key Principles
The Act is underpinned by five key principles (Section 1, MCA).
Principle 1: A Presumption of Capacity
– Every adult has the right to make their own decision and must be assumed to have capacity to do so unless is it proved otherwise.
Principle 2: Individuals being supported to make their own decisions
– A person must be given all practicable help before anyone treats them as not being able to make their own decisions.
Principle 3: Unwise decisions
– People have the right to make decisions that others might regard as unwise or eccentric.
Principle 4: Best Interests
– Anything done for or on behalf of a person who lacks mental capacity must be done in their best interests
Principle 5: Less Restrictive Option
– Someone making a decision or acting on behalf of a person who lacks capacity must consider whether it is possible to decide or act in a way that would interfere less with the person’s rights & freedoms of action, or whether there is a need to decide or act at all.
Assessment of Capacity
Sections 2 – 4 of MCA.
Under the act you are required to carry out an assessment of capacity before carrying out any care or treatment having taken into account the 5 key principles. You should also ensure that the more serious the decision that is required the more formal the assessment process should be.
Workers are required to be aware of when there is a need for capacity to be assessed:
– Someone’s mind or brain is affected by illness or disability.
– Lack of capacity might not be a permanent condition.
– Assessments of capacity should be time and decision specific.
– Assessments of capacity should not be based on age, appearance, condition or behaviour alone.
The Test to Assess Capacity
The MCA has a 2 stage functional test of capacity which helps to decide whether a person has the capacity to make a specific decision.
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 of or disturbance sufficient that the person lacks the capacity to make a particular decision?
The MCA states that a person is unable to make their own decision if they cannot do one or more of the following 4 things:
Communicate their decision – this can be written, verbal, sign language or muscular movement including squeezing a hand or blinking an eye.
The act is clear that communication methods must be fully explored before deciding on lack of capacity which is only based on inability to communicate. In addition you must involve family, friends, carers and professionals to fully explore communication.
The MCA states that you should base the outcome of your assessment on the balance of probabilities.
– meaning it is more likely than not that the person lacks capacity
– your records should clearly show how you came to this outcome of this particular decision
Best Interest Decision Making
When a person is assessed as lacking capacity then the person who acts on their behalf is known as the “Decision-Maker.”
The Decision-Maker is usually someone who is involved with the persons ongoing care on a day to day basis, they maybe a professional or a carer, a social worker or a nurse.
The Decision-Maker must make decisions which are in the best interest of the person who is said to be lacking in capacity.
The Decision Maker makes decisions to do with regard to treatment, care or accommodation needs.
There is an non exhaustive checklist of factors that the Decision-Maker must work through in deciding what is in the person’s best interest.