The Mental Capacity Act

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 (NHS).

If you would like more information about the MCA and what it means for you and your loved ones, find more information about it below.

What does it mean when a person 'lacks capacity' to give consent?

When someone does not have capacity to give consent, it means that they are unable to make a particular decision or take an action for themselves at the time the decision needs to be made.

For example, they may have the ability to make small decisions about everyday issues such as what to wear, or what to ear, but lack capacity to make more complex decisions about financial matters.

How would you recognise if a person might lack capacity under the Mental Capacity Act?

You would need proof that the person has an impairment of the mind of brain, or a disturbance that affects the way their mind works. If a person does not have such an impairment, they are seen to have capacity.

For a person to lack capacity to make a decision, their impairment must affect their ability to make the specific decision when they need to.

However, before they are considered to lack capacity under the act, they must be given all practical and appropriate support to make decisions for themselves.

What communication techniques might help someone make a decision or express a choice?
  • All appropriate means of communication should be tried
  • Ask the people who know the person well what would be the best form of communication
  • Is there a time when it is best to communicate with the person?
  • Use simple language, pictures, objects or illustrations to demonstrate ideas
  • Speak at a volume and speed that is right for the person
  • Make sure you pause to check that they understand
  • It may be necessary to repeat information or go back over a point several times
  • Show the person that ca choice is available to them
  • Break down difficult information into smaller points that are easier to understand
  • Give the person time to consider each point before continuing to the next
  • Is help available for an advocate?
    • IF so, make sure the person’s right to confidentiality is respected
How can you assess capacity?

To assess someone’s capacity to make a decision for themselves, you can use this two-stage test.

  1. Does the person have an impairment of the mind of brain, or is there some sort of disturbance affecting the way their mind works?
  2. If so, does that impairment or disturbance mean that the person is unable to make the decision in question at the time it needs to be made?

To assess someone’s ability to make a decision, consider these questions:

  • Does the person have a general understanding of what decision they need to make and why they need to make it?
  • Does the person understand the consequences of making (or not making) this decision?
  • Can they understand, retain, use and weigh up the information relevant to the decision
  • Can the person communicate their decision?

If you assessing someone’s capacity to make more complex or serious decisions, you may need a more thorough assessment by a doctor or other professional.

Who should assess capacity?

The person who  assesses a person’s capacity t make a decision will usually be the person who is directly concerned wit the individual at the time the decision needs to be made.

This means that different people will be involved in assessing someone’s capacity to make different decisions at different times. For most day-to-day decisions, this will be the person supporting them at the time a decision must be made.

For example, a family member may need to assess if the person can consent to being bathes, but a doctor would assess if a person can consent to certain treatments.

What is a "reasonable belief" of lack of capacity?

You do not have to be an expert in assessing capacity if you are a carer (whether a family or friend, or paid care worker). However, to have protection from liability when providing care or treatment, they must have a ‘reasonable belief. that the person they care for lacks capacity to make relevant decisions about their care or treatment.

To have reasonable belief they must have taken reasonable steps to establish that the person lacks capacity to make a decision or consent to an act at the time that decision is needed. they must also establish that the act or decision is in the person’s best interests.

They do not usually need to follow formal processes such as involving a professional to make an assessment, however if somebody challenged their assessment they must be able to describe the steps they took.

How do you make sure the person has all the relevant information they need to make the decision?
  • Start by assuming the person has capacity to  make the specific decision. Is there anything to prove otherwise?
  • Make every effort to explain what is happening and try to help the person make the decision in question.
  • Use a location where the person feels most at east
  • Use a time of day when the person’s understanding is better
  • Does the person understand what decision they need to make? Do they understand why they need to make it?
  • Can the person understand information about the decision? Can they retain it, use it and weigh it to make a decision?
  • If the person is making a decision that involved choosing between alternatives, do thy have information on all the different options?
  • Can anyone else help the person to make choices or express a view?
  • Can the decision be put off until the circumstances are different and the person concerned may be able to make the decision or access additional support?
  • Does the person have a previous diagnosis of disability or mental disorder? Does the condition affect their capacity to make the decision?
  • If there has been no previous diagnosis, it may be best to get a medical opinion.

Be aware that the fact that a person agrees with you or assents to what if proposed does not necessarily mean that the person has capacity to make the decision

When can you make a best interest decision?

One of the most important principles of the mental capacity act is that any decisions made on behalf of a person who lacks capacity must be made in their best interest.

This is the same whether the person making the decision is a family member, friend, a paid carer, attorney, court-appointed deputy or healthcare professional. It also doesn’t matter whether the decision is a minor issue (like what to wear) or a major issue (like where to live).

As long as these decisions are in the best interests of the person who lacks capacity, then the decision-maker or carer will be protected from liability (there are exceptions to this, though, including advanced decisions)

How can you make sure that decisions have been made in their best interest?

There are a number of ways to make sure that decisions are in the best interest of the person who lacks capacity. These include:

  • Encouraging participation from the person
  • Identify all relevant circumstances
  • Find out the person’s views
  • Avoid discrimination
  • Assess whether the person might regain capacity
  • If the decision concerns life-sustaining treatment
  • consult others
  • Avoid restricting the person’s rights
Who can be a decision-maker?

For most day-to-day decisions, the decision-maker will be the care most directly involved with the person at the time.

Where the decision involved the provision of nursing or medical treatment, the nurse, doctor or other health professional is the decision maker.

Where nursing or paid care is involved, the nurse will be the decision maker.

If a Lasting Power of Attorney has been made and registered or a deputy has been appointed under a court order, they will be the decision maker for decisions within the scope of their authority.

What are the five principles of the Mental Capacity Act 2005?

1. Presumption of Capacity

A person must be assumed to have capacity unless it is established that they lack capacity

2. Right for individuals to be supported to make their own decisions

A person is not to be treated as unable to make a decision unless all practicable steps to help them to do have been taken and haven’t worked.

3. Right to make 'unwise or eccentric' decisions

A person is not to be treated as unable to make a decision merely because he makes an unwise decision.

4. Best interest decisions

And act done, or decision made, under the Mental Capacity Act for or on behalf of a person who lacks capacity must be done in their best interests.

5. Less restrictive option

Before a 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 to the person’s rights and freedom of action.

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