Mental Capacity Act 2005 (MCA) is designed to protect and empower people who may lack the mental capacity to make their own decisions about their care and treatment. So, understanding the Mental Capacity Act 2005 and the 5 key principles that advisers should follow is very important.
It covers different types of decisions, for example, simple ones about day-to-day things like what to wear or what to eat, or more serious life-changing decisions like whether to move into a care home or have major surgery.
The MCA applies to people who are aged 16 years and over.
Lacking capacity under the Mental Capacity Act 2005
Examples of people who may lack capacity include those with:
- dementia
- a severe learning disability
- a brain injury
- a mental health illness
- a stroke
- unconsciousness caused by an anaesthetic or sudden accident
It doesn’t necessarily mean that someone lacks capacity just because they have one of the conditions above. For example, having a diagnosis of dementia does not mean you have lost capacity.
Different decision levels
Under the MCA, there are different levels of decision. A person may lack capacity to make complex financial decisions but, still be capable of deciding what they want to eat. There is also a difference between decisions made under a Financial and Property Lasting Power of Attorney (LPA) and an LPA for Health and Wellbeing. The donor has to have lost capacity for decisions to be made under the LPA for Health and Wellbeing but, not for a Financial and Property LPA.
Five key principles of the Mental Capacity Act 2005
There are five principles under the MCA which guide advisers to:
- assume a person has the capacity to make a decision themselves, unless it’s proved otherwise
- wherever possible, help people to make their own decisions
- do not treat a person as lacking the capacity to make a decision just because they make an unwise decision
- if you make a decision for someone who does not have capacity, it must be in their best interests
- treatment and care provided to someone who lacks capacity should be the least restrictive of their basic rights and freedoms
People should also be provided with an independent advocate, who will support them to make decisions in certain situations, such as serious treatment or where the individual might have significant restrictions placed on their freedom and rights in their best interests.
MCA Checklist
The MCA 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 individual 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?
Best interests decisions
It’s vital to consult with others for their views about the person’s best interests and to find the least restrictive option.
In particular, try to consult:
- anyone previously named by the individual
- 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
Finding the least restrictive option
Before you make a decision or act on behalf of someone who lacks capacity, always question if you can do something else that would interfere less with their basic rights and freedoms.
This is called finding the “least restrictive alternative“. It includes considering whether there’s a need to act or make a decision at all.
Where there’s more than one option, it’s important to explore ways that would be less restrictive or allow the most freedom for a person who lacks capacity. The final decision must always allow the original purpose of the decision or act to be achieved. Any decision or action must still be in the best interests of the person who lacks capacity.
So sometimes it may be necessary to choose an option that is not the least restrictive alternative if that option is in the person’s best interests.
