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The Mental Capacity Act 2005

The information below provides a general introduction to the Mental Capacity Act 2005 (which came into force in October 2007). The Mental Capacity Act (MCA) contains a lot of information, and at the end of the article you can see links and information where you can find out more.

Who is covered by the MCA?

The Mental Capacity Act is designed to protect people who lack the mental capacity to make decisions for themselves. It applies to people who lack capacity from age 16 years upwards.

The Act also ensures that people who are able to make their own decisions get all the assistance they need to do so.

We can all find it hard to make decisions occasionally, maybe due to illness, tiredness or indecision. The MCA is designed to go beyond these types of situations; and covers people who may have difficulties making some decisions either all or some of the time. This might be due to things like having a learning disability, a mental health problem, or a brain injury.

It also can include temporary incapacity, for example a lack of capacity caused by drug misuse. (People covered by the MCA all have an ‘impairment or disturbance in the functioning of the mind or brain’).

What does lacking mental capacity to make decisions mean?

The law defines someone who lacks capacity to make a particular decision as someone who has an impairment or disturbance in the mind or brain; and is unable to do one or more of the following four things:

* Understand 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 by any possible means (An assessment of a person’s mental capacity looks at all of these four areas).

The MCA makes us look at each decision separately. For example, a person with a learning disability could decide to spend their money on a meal out, but lack capacity to make a decision about buying a car, as the decision is more complicated. So you would never say that someone ‘lacks capacity’, you would say they ‘lack capacity to make a particular decision’.

What are the important principles in the MCA?

The Act has 5 very important statutory principles that everybody (including paid professionals, and family carers) needs to follow:

  1. We should presume people have capacity - every adult (age 16+) has the right to make his or her own decisions; unless it has been proved they do not have capacity
  2. People have the right to be supported to make their own decisions - people must be given all appropriate help before anyone concludes that they cannot make their own decisions
  3. People who have capacity have the right to make unwise decisions (i.e. decisions that other people might think are eccentric or unusual)
  4. Anything done for, or on behalf of, people without capacity must be in their best interests
  5. Anything done for or on behalf of people without capacity should be the option that is less restrictive of their basic rights and freedoms - as long as it is still in their best interests.

What kind of decisions are involved?

The MCA covers big decisions, for example; money; healthcare / medical treatment; and where the person lives.

It also covers more everyday decisions, like choosing what clothes to wear, or food to eat; buying things in shops; care and support provided to the person.

Decisions that are very personal are not covered, including decisions about getting married, having a sexual relationship, voting in elections; and some are covered by other laws.
(Deciding about treatment for mental health is covered separately in the Mental health Act 1983).

The MCA also introduced two new criminal offences; ill treatment, and wilful neglect of a person who lacks capacity to make relevant decisions. This applies to anyone caring for a person who lacks capacity, including care or education staff, and family carers/relatives.

How must we help people to make their own decisions?

The second important principle (see above) is about making sure everyone gets the best chance to make their own decisions, whenever they can. This will be different for different people. Most people will benefit from support from someone who understands them well – this could be a family member, a keyworker, a friend, or someone whose job it is to help them communicate, like a speech and language therapist or an advocate. The right person to help might change, depending on what the specific decision is.

People should be provided with all the information relevant for the decision, and information about alternatives.

Communication should be in a way that the person can understand, e.g. pictures or photos, simple language, Talking Mats.

Pick a time of the day or week, and a place that is best for the person, e.g. some people feel more alert in the morning, or feel more comfortable away from home.

You can put off making a decision if the circumstances aren’t right, for example if the person feels unwell following a seizure.

Who makes decisions for people who lack capacity?

Usually decisions for a person who lacks capacity will be made by those around them using the basic principles of the Mental Capacity Act, and acting in their ‘best interests’.

Family carers must always be consulted about decisions being made in the best interests of their family member who lacks capacity. Section 4 of the MCA requires anyone making decisions to consult with anyone involved in caring for the person or interested in their welfare; with further guidance in Chapter 5 of the MCA Code of Practice.

For some decisions, an application to the Court of Protection may be necessary. The Court of Protection is a specialist court which makes decisions for adults (16+) who lack capacity to make specific decisions for themselves.

The Court can assist with decisions about:

* Property and finances, or serious health & welfare decisions
* Particularly difficult decisions
* Disagreements that cannot be resolved in any other way
* Situations where ongoing decisions may need to be made about personal welfare

Some people want to give another person the authority to make a decision on their behalf. This can be done via a Lasting Power of Attorney (LPA) document. You can choose someone you trust to make decisions for you, if in the future you lack capacity to decide for yourself. You must have capacity at the time you create your LPA, and it must be registered with the Office of the Public Guardian before it is used. An example might be someone with a condition that will deteriorate, like dementia.

If there is a need for ongoing decisions to be made, the court may appoint a person to be a deputy; and it will state what decisions the deputy has the authority to make. People who don’t have any family or friends who can be consulted to help with decisions can have an Independent Mental Capacity Advocate (IMCA) to work with them and help represent their views.

Where can I find out more?

A detailed guide especially for family carers: Making decisions: A guide for family, friends and other unpaid carers.

There are lots of resources at SCIE website: http://www.scie.org.uk/publications/mca/index.asp

There are web pages especially for carers at NHS Choices

More information from the Government is available at direct.gov.uk Click here

Mencap has produced a Mental Capacity Act resource pack that can be downloaded from their website.

Mencap, Ambitious About Autism, and the Challenging Behaviour Foundation have worked with Irwin Mitchell solicitors to produce a leaflet to help relatives who are concerned they might not properly be consulted or involved in the decision-making process: Click here

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