March 2018: This chapter has been amended to add a link to a Brief Guide to carrying out Capacity Assessments, published by 39 Essex Chambers, as above.
- 1. Definition
- 2. Principles of the Mental Capacity Act
- 3. Excluded Decisions
- 3. Determining Capacity
- 4. Recording
- 5. Making Decisions on behalf of someone who lacks Capacity
- 6. Best Interests
The Mental Capacity Act 2005 (MCA 2005) provides a framework to protect and restore power to those who may lack, or have reduced, capacity to make certain decisions at particular times. It places the adult at the centre of the decision making process.
‘Whenever the term ‘a person who lacks capacity’ is used, it means a person who lacks capacity to make a particular decision or take a particular action for themselves at the time the decision or action needs to be taken.
This reflects the fact that people may lack capacity to make some decisions for themselves, but will have capacity to make other decisions. For example, they may have capacity to make small decisions about everyday issues such as what to wear or what to eat, but lack capacity to make more complex decisions about financial matters.
It also reflects the fact that a person who lacks capacity to make a decision for themselves at a certain time may be able to make that decision at a later date. This may be because they have an illness or condition that means their capacity changes. Alternatively, it may be because at the time the decision needs to be made, they are unconscious or barely conscious whether due to an accident or being under anaesthetic or their ability to make a decision may be affected by the influence of alcohol or drugs.
Finally, it reflects the fact that while some people may always lack capacity to make some types of decisions – for example, due to a condition or severe learning disability that has affected them from birth – others may learn new skills that enable them to gain capacity and make decisions for themselves’ (MCA 2005 Code of Practice, 2007: p3).
The Act legislates in relation to:
- allowing adults to make as many decisions as they can for themselves;
- enabling adults to make advance decisions about whether they would like future medical treatment;
- allowing adults to appoint, in advance of losing mental capacity, another person to make decisions about personal welfare or property on their behalf at a future date;
- allowing decisions concerning personal welfare or property and affairs to be made in the best interests of adults when they have not made any future plans and cannot make a decision at the time;
- ensuring an NHS body or local authority will appoint an independent mental capacity advocate to support someone who cannot make a decision about serious medical treatment, or about hospital, care home or residential accommodation, when there are no family or friends to be consulted (see also Independent Mental Capacity Advocate Service);
- providing protection against legal liability for carers who have honestly and reasonably sought to act in the person’s best interests;
- providing clarity and safeguards around research in relation to those who lack capacity.
The MCA relates to people over the age of 16 years old. For the purposes of this manual, however, it only applies to those over the age of 18 years old, who are not children under the Children Act 1989 (before their 18th birthday).
2. Principles of the Mental Capacity Act
The following five principles apply for the purposes of the Act:
- a person must be assumed to have capacity unless it is established that they lack capacity;
- a person is not to be treated as unable to make a decision unless all practicable steps to help them to do so have been taken without success;
- a person is not to be treated as unable to make a decision merely because they make an unwise or bad decision;
- an act done or decision made, under the Act for or on behalf of a person who lack capacity must be done, or made, in their best interests;
- 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 five principles of the Act should inform all actions when working with a person who may lack or have reduced capacity and should be evidenced in taking decisions or actions on behalf of a person who may lack or have reduced capacity.
3. Excluded Decisions
There are certain decisions which can never be made on behalf of a person who lacks capacity to make those specific decisions. This is because they are either so personal to the individual concerned, or they are governed by other legislation.
Although the Act does not allow anyone to make a decision about the matters below on behalf of someone who lacks capacity to make such a decision for themselves (for example, consenting to have sexual relations), this does not prevent action being taken to protect a vulnerable person from abuse or exploitation.
Decisions concerning family relationships
Nothing in the MCA allows a decision to be made on someone else’s behalf on:
- consenting to marriage or a civil partnership;
- consenting to have sexual relations;
- consenting to a decree of divorce on the basis of two years’ separation;
- consenting to the dissolution of a civil partnership;
- consenting to a child being placed for adoption or the making of an adoption order;
- discharging parental responsibility for a child in matters not relating to the child’s property; or
- giving consent under the Human Fertilisation and Embryology Act 1990.
Mental Health Act matters
Where a person who lacks capacity to consent is currently detained and being treated under the Mental Health Act 1983, nothing in the MCA authorises anyone to:
- give the person treatment for mental disorder; or
- consent to the person being given treatment for mental disorder.
Nothing allows a decision on voting – at an election for any public office or at a referendum – to be made on behalf of a person who lacks capacity to vote.
Unlawful killing or assisting suicide
Nothing in the MCA affects the law relating to murder, manslaughter or assisting suicide.
3. Determining Capacity
Anybody who claims an adult lacks capacity should provide proof.
They need to demonstrate, on the balance of probabilities, that the individual lacks capacity to make a particular decision, at the time it needs to be made. This means being able to demonstrate it is more likely than not that the person lacks capacity to make the decision in question.
3.1 Two stage test
To help determine if a person lacks capacity, the Act sets out a two stage test.
Stage 1: The Diagnostic Test
Does the person have an impairment of, or a disturbance in the functioning of, their mind or brain?
Stage 1 requires proof the person has an impairment or disturbance of the mind or brain. If a person does not have such an impairment or disturbance of the mind or brain, they will not lack capacity under the Act. Examples include:
- conditions associated with some forms of mental illness;
- significant learning disabilities;
- the long term effects of brain damage;
- physical or medical conditions that cause confusion, drowsiness or loss of consciousness;
- concussion following a head injury; and
- effects of alcohol or drug use.
Stage 2: The Functioning Test
Does the impairment or disturbance mean that the person is unable to make a specific decision when they need to?
The person must first be given all practical and appropriate support to help them make the decision for themselves. Stage 2 can only apply if all practical and appropriate support to help the person make the decision has failed.
3.2 Inability to make a decision
A person is considered unable to make a decision if they cannot:
- understand information about the decision to be made (‘relevant information’);
- retain that information in their mind;
- use or weigh that information as part of the decision making process; or
- communicate their decision (by talking, using sign language or any other means).
The two stage test should be used as a framework for recording the assessment of mental capacity, so that evidence for decision making is clear.
5. Making Decisions on behalf of someone who lacks Capacity
If, having taken all practical steps to assist someone, it is concluded that a decision should be made for them, that decision must be made in that person’s best interests. It must also be considered whether there is another way of making the decision which might not affect the person’s rights and freedom of action as much (known as the ‘least restrictive alternative’ principle).
5.1 Decision makers
Different people may be required to make decisions or act on behalf of someone who lacks capacity to make decisions for themselves. The person making the decision is known as the ‘decision maker’, and it is their responsibility to determine what would be in the best interests of the person who lacks capacity.
Determining who the decision maker is depends on the decision and the context, and not on the circumstances of the individual. For most day to day actions or decisions, the decision maker will be the carer most directly involved with the person at the time. Family members and informal carers will be decision makers for actions that they undertake. A care assistant will be the decision maker if the decision is, for instance, about what clothes to put on that morning.
Professionals are the decision makers for actions for which they are responsible. A doctor or other health professional will be the decision maker about someone’s capacity for the treatment they are prescribing, or initiating a care pathway. A nurse will be the decision maker about the treatment or care that they are delivering or administering. A social care professional will be the decision maker about a move into residential care or commissioning a package of care.
In some cases, the same person may make different types of decision for someone who lacks capacity. For example, a carer may carry out certain acts in caring for the person on a daily basis, but if they are also an attorney, appointed under a Lasting Powers of Attorney, they may also make specific decisions concerning the person’s property and affairs or personal welfare.
A decision may also, at times, be made jointly by a number of people. For example, when a care plan for a person who lacks capacity is being developed, different healthcare or social care staff might be involved in making decisions or recommendations about their care package. Alternatively, the decision may be made by one practitioner within the team. A different member of the team may then implement that decision, based on what the team has ascertained to be in the person’s best interests.
5.2 Lasting Powers of Attorney, Court Appointed Deputy and the Public Guardian
A Lasting Powers of Attorney (LPA) allows an adult to appoint an attorney to act on their behalf if they should lose capacity in the future and allows them to empower an attorney to make health and welfare decisions.
A Court Appointed Deputy is appointed by the Court of Protection. Depending on the terms of their appointment, deputies can take decisions on welfare, healthcare and financial matters as authorised by the Court of Protection but they are not able to refuse consent to life sustaining treatment. Deputies are only appointed if the Court cannot make a one off decision to resolve the issues.
The MCA created a public body and an official to support the statutory framework:
- The Court of Protection has jurisdiction relating to the whole Act, with its own procedures and nominated judges;
- A Public Guardian, supported by the Office of the Public Guardian (OPG). The OPG is the registering authority for LPA’s and deputies. It supervises deputies appointed by the Court and provides information to help the Court make decisions. It also works with other agencies, for example the police and adult social care, to respond to any concerns raised about the way in which an attorney or deputy is operating.
5.3 Independent Mental Capacity Advocates
The MCA also included another key provision to protect people who lack capacity. Independent Mental Capacity Advocates (IMCA) are those appointed to support a person who lacks capacity but has no one to speak for them. They have to be involved where decisions are being made about serious medical treatment or a change in the adult’s accommodation where it is provided, or arranged, by the NHS or a local authority. The IMCA makes representations about the person’s wishes, feelings, beliefs and values, and brings to the attention of the decision maker all relevant factors to the case. IMCA services are provided by organisations that are independent of the NHS and local authorities.
5.4 Forward Planning
Considering the possibility of losing mental capacity and registering a Lasting Power of Attorney is usually associated with people getting older. But it would be wise to consider such decisions and act on them much earlier in life, in case of unexpected illness or an accident that results in a temporary or permanent loss of capacity.
Using a LPA is not necessarily limited to circumstances where an adult’s capacity is diminished. Due to a physical illness that renders a person (the donor) unable to leave the house for example, a LPA who is registered in relation to property and financial affairs can carry out financial transactions on their behalf and with their permission. In the absence of a registered LPA the alternative would be to borrow the money which could attract charges, or to apply to the Court of Protection.
Although a LPA cannot be used until it has been fully registered and confirmation received, they can be registered before capacity is lost which means that they could be used immediately if it should become necessary.
6. Best Interests
The Mental Capacity Act sets out a checklist of things to consider when deciding what’s in a person’s best interests. People should:
- not make assumptions on the basis of age, appearance, condition or behaviour;
- consider all the relevant circumstances;
- consider whether or when the person will have capacity to make the decision;
- support the person’s participation in any acts or decisions made for them;
- not make a decision about life sustaining treatment ‘motivated by a desire to bring about his (or her) death’;
- consider the person’s expressed wishes and feelings, beliefs and values;
- take into account the views of others with an interest in the person’s welfare, their carers and those appointed to act on their behalf.