The Mental Capacity Act 2005 is a law that promotes people’s rights to make decision for themselves wherever they can and provides safeguards for those who cannot. The Act covers important decisions relating to an individual's property, financial affairs, health and social care. It also applies to everyday decisions, such as personal care, what to wear and what to eat. It also allows us to plan ahead for a time when we are unable to make these decisions for oneself.
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.
The Act is based around 5 key principles:
- 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 him to do so have been taken without success.
- A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
- 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.
- 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.
Where people can make decisions for themselves, they should be supported to do so.
Consider for example,
- does the person have all the relevant information they need?
- have they been given information on any alternatives?
- could information be explained or presented in a way that's easier for them to understand (for example, by using simple language or visual aids)?
- have different methods of communication been explored, such as non-verbal communication?
- could anyone else help with communication, such as a family member, carer or advocate?
- are there particular times of day when the person's understanding is better?
- are there particular locations where the person may feel more at ease?
- could the decision be delayed until they might be better able to make the decision?
Everyone has difficulties making decisions from time to time, but Mental Capacity Act is about more than that. It is there for situations where someone is unable to make a decision because of an “impairment of, or a disturbance in the functioning of, the mind or brain”. This could be for example, due to illness, brain injury, learning disability, mental health problems, or the effects of drugs or alcohol.
A person lacks mental capacity if, as a result they are unable to:
- Understand the information given to them
- Retain that information long enough to be able to make a decision
- Weigh up the information available to make a decision
- Communicate their decision.
Mental capacity is decision and time specific. That means that someone may have capacity to make some decisions and not others. 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. They may also be able to make a decision at a certain time of day, but perhaps due to illness or medication, but not be able to make it at another time.
If someone lacks the capacity to make a decision and the decision needs to be made for them, the Mental Capacity Act states that the decision must be made in their best interests, taking into account the person's wishes, feelings, beliefs and values.
The Code of Practice sets out a checklist to consider when deciding what's in a person's best interests. It says you should:
- encourage participation – do whatever's possible to permit or encourage the person to take part
- identify all relevant circumstances – try to identify the things the person lacking capacity would take into account if they were making the decision themselves
- find out the person's views – including their past and present wishes and feelings, and any beliefs or values
- avoid discrimination – do not make assumptions on the basis of age, appearance, condition or behaviour
- assess whether the person might regain capacity – if they might, could the decision be postponed?
It's vital to consult with others for their views about the person's best interests. In particular, try to consult:
- anyone previously named by the person
- anyone engaged in caring for them
- close relatives and friends
- any attorney appointed under a Lasting Power of Attorney or Enduring Power of Attorney
- any deputy appointed by the Court of Protection to make decisions for the person
The Mental Capacity Act also sets out a range of ways by which people can plan for a time when they are no longer able to make decisions for themselves.
A Lasting Power of Attorney (LPA) is a legal document that, in the event that a person later becomes unable to make certain decisions, lets a trusted person make these decisions on their behalf.
There are two different types of Lasting Power of Attorney (LPA):
- A 'Health and Welfare LPA' allows a person to choose one or more people to make decisions about things such as medical treatment on their behalf.
- A 'Property and Financial Affairs LPA' - allows a person to choose one or more people to make property and financial affairs decisions on their behalf.
The Mental Capacity Act also provides for Advanced Decisions (also known as Advanced Directives) to Refuse Treatment. This enables someone to plan ahead and refuse specified medical treatment in the future, for a time when they lack the mental capacity to consent or refuse that treatment.
A person may also make an Advanced Statement as to the treatment or care they would like to be given in the future if they should become unable to decide for themselves. This is not legally binding but will help others to understanding their wishes and preferences.
These measures can help people to plan for how their health, wellbeing and financial affairs will be looked after when they are no longer able to do this for themselves.
The Deprivation of Liberty Safeguards (DoLS) are part of the Mental Capacity Act 2005. The safeguards aim to make sure that people in care homes and hospitals are looked after in a way that does not inappropriately restrict their freedom.
The safeguards set out a process that hospitals and care homes must follow if they believe it is in the person's best interests to deprive a person them of their liberty, in order to provide a particular care plan. It is then the role of Leeds Adult Social Care to arrange for assessments to ensure the deprivation of liberty is in the person’s best interests.
In summary, the safeguards ensure:
- that the arrangements are in the person’s best interest
- the person is appointed someone to represent them
- the person is given a legal right of appeal over the arrangements
- the arrangements are reviewed and continue for no longer than necessary.
A court decision determined that a deprivation of liberty occurs when:
- a person is under continuous supervision and control in a care home or hospital, and
- is not free to leave, and
- the person lacks capacity to consent to these arrangements.
Whether someone is deprived of their liberty depends on the person's specific circumstances. A large restriction may sometimes in itself be a deprivation of liberty or sometimes a number of small restrictions added together will amount to a deprivation of liberty. What needs to be assessed is the amount of control that the care home or hospital has over the person.
For more information on any matters relating to the Mental Capacity Act, it is recommended that practitioners refer to the Mental Capacity Act: Code of Practice and seek advice from Mental Capacity Act Leads within their organisation.