MANCHESTER SPECIFIC INFORMATION
April 2018: This chapter has been amended to add a link – as above – to a Brief Guide to carrying out Capacity Assessments, published by 39 Essex Chambers.
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:
The MCA relates to people over the age of 16 years old. For the purposes of this APPP, 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).
The following five principles apply for the purposes of the Act:
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.
Anybody who claims an adult lacks capacity about a particular decision should provide evidence.
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.
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 evidence that 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:
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.
A person is considered unable to make a decision if they cannot:
If there is evidence that the person cannot do one of these things, it must be attributable to their specific impairment.
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.
If, having taken all practical steps to assist someone, it is concluded that the person lacks capacity and that a decision should be made for them, that decision must be made in the person’s best interests.
The MCA sets out a checklist of things to consider when deciding what’s in a person’s best interests. People should:
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.
For most day to day actions or decisions, the decision maker will be the person most directly involved with the person at the time.
Where the decision involves the provision of medical treatment, the person proposing the treatment is the decision maker.
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 also have Lasting Powers of Attorney for the person, they may also make specific decisions concerning the person’s property and affairs or personal welfare.
A decision may also 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. 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.
A Lasting Powers of Attorney (LPA) allows an adult to appoint an attorney to act on their behalf if they should lose capacity at a future date. The person (the donor) can choose to appoint an attorney to act in relation to a range of different health, care and financial decisions. The donor must be over 18 and have capacity at the time of appointment.
A deputy is appointed by the Court of Protection. Depending on the terms of their appointment, deputies can make decisions about welfare, health care or financial matters as authorised by the Court, but they cannot refuse to 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 MCA also included another key provision to protect people who lack capacity. Independent Mental Capacity Advocates (IMCA) are appointed to support a person who lacks capacity but who has no one to advocate for them who is not a paid professional. 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.
Considering the possibility of losing mental capacity and registering a Lasting Power of Attorney is usually associated with people getting older. But it might be useful for adults of any age to consider making use of such provisions, in case of unexpected illnesses or accidents for example, that results in a temporary or permanent loss of capacity.
LPAs with the authority to make decisions about property or financial affairs can, with the consent of the person, act or make decisions whilst the person still has capacity.
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