Mental Capacity Act 2005
The Mental Capacity Act (MCA) sets out in law how people aged 16 and above, who may lack mental capacity, can be assessed, provided with the care they need and protected.
What is mental capacity?
If you have mental capacity, it means that you are able to make your own decisions. This means you are able to understand and think through information and make a choice based on that information. We all have problems making decisions from time to time, but the MCA is about more than that. It is designed to cover situations where someone is unable to make a particular decision at a particular time because of the way their mind or brain works as a result of illness or disability or the effects of drugs or alcohol.
A lack of mental capacity could be due to a stroke or brain injury, a mental health problem, dementia, a learning disability or substance misuse for example. In all these instances a person may lack capacity to make particular decisions at particular times but it does not mean that they lack capacity to make all decisions about their life. Lack of capacity can be temporary.
The Mental Capacity Act is there to support people to make their own decisions, it provides a clear test to assess their capacity, sets out what needs to be considered when decisions need to be made for people who are unable to make them for themselves, called best interests, and also provides legal ways to plan for the future.
Assessing capacity
The MCA provides a test for people to use to make a judgment about whether a person has capacity to make their own decision at the time it needs to be made. To assess whether someone can make the decision, an assessor must look at whether the person:
- Can understand information given to them about the decision
- Retain that information
- Balance or weigh up information about options and then communicate their decision.
No one can be labelled 'incapable' simply because they have a learning disability, brain injury or dementia for example. Who assesses capacity depends on the decision to be made. For day to day decisions a carer/family member could assess capacity. For more complex decisions such as consent to treatment or moving into a care home, a health or social care professional will normally be the person assessing capacity.
Best interests
When it has been established that an individual does not have capacity to make a particular decision, then a decision must be made in the individual's best interests by the decision maker. To do that they must listen to what the person wants, ask the people who know them best and involve any carers.
The decision maker is whoever is making the decision. For medical decisions this is usually a doctor, or for accommodation decisions a social worker. The Mental Capacity Act Code of Practice (PDF) [https://www.gov.uk/government/publications/mental-capacity-act-code-of-practice] provides a best interest checklist for decision makers to use.
Planning ahead
The Mental Capacity Act introduced a number of ways to help people plan for a time when they may lack capacity to make some decisions. This includes Lasting Powers of Attorney, Advanced Decisions and Advanced Statements.
Lasting Powers of Attorney (LPA)
Since October 2007 a person can appoint someone of their choice (called an attorney) to act on their behalf should they lose mental capacity in the future. The powers can cover health and welfare decisions as well as property and finance decisions. LPAs must be registered with the Office of the Public Guardian (OPG). There are two types of LPA:
- A property and financial affairs LPA - this gives a person's appointed attorney authority to make decisions about things like:
- money, tax and bills
- bank and building society accounts
- property and investments
- pensions and benefits
- A health and welfare LPA - this gives a person's appointed attorney authority to make decisions about their healthcare and personal welfare.
Age UK provide a very helpful free booklet 'Powers of Attorney (PDF) [http://www.ageuk.org.uk/Documents/EN-GB/Information-guides/AgeUKIG21_Powers_of_attorney_inf.pdf]' and you can fill in the forms online on GOV.UK [https://www.lastingpowerofattorney.service.gov.uk/home]. Alternatively, the forms can be downloaded from the GOV UK site [https://www.gov.uk/government/collections/lasting-power-of-attorney-forms].
Advanced Decisions
Since October 2007 adults who have capacity can make an 'Advanced Decision' to refuse a particular medical treatment. Advanced Decisions also called 'Living Wills' are legally binding. You can refuse any treatment so long as you are clear about the type of treatment and you can refuse treatments that would sustain your life. The NHS UK website provides information about planning for the future [http://www.nhs.uk/Planners/end-of-life-care/Pages/advance-decision-to-refuse-treatment.aspx].
Advanced Statements
You can also write down or tell others about your wishes, feelings and preferences about your future treatment or care. These statements are not legally binding in the same way as Advanced Decisions but must be taken into account when deciding what is in your best interests.
Court Appointed Deputies
If someone has not planned ahead by making an LPA, and it is necessary to give someone ongoing authority to deal with a series of long term issues, the Court of Protection can appoint a Deputy to make decisions on the person's behalf. The Deputy must be someone who is 18 years or over. They can be a relative, friend or professional such as an accountant or solicitor.
Deputies can be appointed to take decisions on welfare, healthcare and finance issues for people lacking capacity. Deputies replaced the previous system of Receivership.
The Court of Protection
The Court of Protection oversees the Mental Capacity Act and has its own procedures and nominated judges. It is especially important in resolving complex or disputed cases where lack of capacity or best interests are an issue.
The Public Guardian
The Public Guardian and their staff register LPAs. They supervise Deputies and provide information to help the Court of Protection with decisions. They work with other agencies to consider any concerns about how an Attorney or Deputy is operating.
Mental Capacity Advocacy Service for Coventry
There is a statutory responsibility to provide an Independent Mental Capacity Advocate (IMCA) for adults who may not have capacity and do not have anyone else who can advocate on their behalf. This includes decisions about where a person lives and serious medical treatment. An IMCA can also assist with a care review or where a person is subject to a safeguarding concern. It is the responsibility of staff in the NHS or Local Council to refer for an IMCA.
In Coventry the IMCA service is provided by ' [https://www.voiceability.org/support-and-help/services-by-location/coventry]VoiceAbility [https://www.voiceability.org/support-and-help/services-by-location/coventry]'. Visit the VoiceAbility website for more information about the service and to download an information leaflet and referral form.
Contact details
Head Office: VoiceAbility,
c/âo Sayer Vincent
110 Golden Lane,
London, EC1Y 0TG
Telephone Number +44(0)3003031660 [tel:+443003031660]
Email: helpline@voiceability.org [mailto:helpline@voiceability.org]
Further information about the Mental Capacity Act
Mental Capacity Act leaflets
Leaflets about different aspects of the Mental Capacity Act. [http://www.coventry.gov.uk/downloads/download/5508/mental_capacity_act_leaflets]
Websites
The following websites will provide you with more information on the Mental Capacity Act.
Age UK [http://www.ageuk.org.uk/]
They provide a number of services to support older people, including a useful factsheet on the Mental Capacity Act and planning for the future.
SCIE MCA website [https://www.scie.org.uk/mca/]
Provides a wide range of information and advice about the MCA.
The Office of the Public Guardian and Ministry of Justice
Has produced a series of guidance booklets [http://www.justice.gov.uk/guidance/protecting-the-vulnerable/mental-capacity-act/index.htm] for different groups of people who need to know about the Mental Capacity Act and what it means for them.
The Alzheimer's Society [http://www.alzheimers.org.uk/]
Provides a wide range of information on mental capacity with a focus on people with dementia.
Carers UK [http://www.carersuk.org/]
Carers UK provides advice aimed at carers.