Mental Capacity Act 2005
1. Introduction
The Mental Capacity Act (MCA) 2005 provides a statutory framework to empower and protect vulnerable people, aged 16 or over, who are not able to make their own decisions. It does this by putting the person at the heart of the decision-making process. It makes clear who can make decisions, in which situations and how they should go about this.
Mental capacity describes a person’s ability to make a specific decision at a specific time. An individual is deemed to lack capacity if, because of an impairment of or a disturbance in the functioning of the mind or brain, they cannot make a specific decision at the time the decision needs to be made. It does not matter if the impairment or disturbance is temporary or permanent.

2. Principles of the Act
The following five principles apply for the purposes of the Act:
1. A person must be presumed to have capacity unless it is established that they lack capacity;
2. A person is not to be treated as unable to make a decision unless all practicable steps to help them to do so have been taken without success;
3. A person is not to be treated as unable to make a decision merely because they make an unwise decision;
4. An act done, or decision made, under the Act for or on behalf of a person who lacks capacity must be done, or made, in their best interests;
5. 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 least restrictive of the person’s rights and freedom of action
The five principles of the Act are a starting point and should inform all actions when working with a person who may lack or have reduced capacity. The five principles should be evidenced in making any decisions for a person who you consider may lack mental capacity.
It is important to remember that it is not for the person to ‘prove’ whether they have capacity, but the decision-maker (i.e. the person who considers that it may be necessary to take a decision on their behalf) to prove that it is more likely than not that the person lacks capacity.

  1. What does the Mental Capacity Act do?

The Act enshrines in law current best practice and common law principles concerning adults who lack capacity and those who make decisions on their behalf. The Act deals with the assessment of a person’s capacity and acts carried out by others and acts carried out by others on behalf of those who lack capacity.

3.1 Assessing lack of capacity

Under the Act, an assessment of capacity is required before carrying out any care or treatment if there is reasonable belief that the person lacks capacity. The more serious the decision to be made, the more formal the assessment of capacity needs to be.

Assessing a lack of capacity includes a written report detailing the assessor’s (decision-maker) reasons for deciding that the individual lacks capacity. The assessment is situation and time specific, and must be done each time an important decision about the person needs to be made, i.e. a person cannot be said to ‘lack capacity’ as a blanket statement – they may, for example, have the mental capacity to be able to make a decision about where they want to live, or who they want to have contact with, but not have the capacity to manage their financial affairs, and this capacity status may change over time if the individual has fluctuating levels of mental capacity due to the effects of a physical or mental health condition.

A person who lacks capacity is defined in the Mental Capacity Act 2005 as:

‘a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself on relation to the matter because of an impairment of, or a disturbance in the functioning of the mind or brain’.

The Act introduces a Legal Test to assess a lack of capacity, which comprises a Diagnostic Test and a Functional Test.

Diagnostic Test

Does the individual have an impairment of, or disturbance of the functioning of, the mind or brain? Examples of such impairments may include, but are not limited to:

  • Significant learning disability
  • Delirium
  • Dementia
  • Mental illness
  • Symptoms of drug or alcohol use
  • Acquired brain injury
  • Conditions that cause confusion, drowsiness, or loss of consciousness

If a person does not have an impairment or disturbance of the mind or brain, they will not lack capacity under the Mental Capacity Act 2005.

Functional Test

Is the individual unable to make a decision for himself, as a result of the impairment or disturbance of the functioning of the mind or brain? The Act states that an individual is unable to make a decision for himself if he is unable:

  • To understand the information relevant to the decision; or
  • To retain that information; or
  • To use or weigh that information as part of the process of making the decision; or
  • To communicate his decision (whether by talking, using sign language, or any other means)

 

What this means in practice

The legal test of capacity as defined in Section 2 of the Act and outlined above needs to be applied in practice. There are however, other considerations with regard to Safeguarding Adults that need to be borne in mind:

  • Has the individual been pressurised or coerced into consenting within an unequal relationship characterised by intimidation, threat, force or exploitation?
  • Physical force or the threat of violence or reprisals also invalidates any consent:
  • Has everyone who could have a say in the decision been consulted: this could include:
    • Anyone named by the person when they had capacity as someone to be consulted;
    • Any carer involved with the person (and this may include the alleged abuser. This is not a duty but it is something that may have to be considered as recommended under paragraph 4.44 of the Code of Practice);
    • Any attorney appointed by the person under a Lasting Power of Attorney;
    • Any deputy appointed by the Court of Protection.

3.2 Who assesses Mental Capacity?

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.

The Act empowers those in health and social care to undertake capacity assessments themselves rather than relying on psychiatrists, psychologists or social workers. For example:

  • For everyday care decisions the carer delivering the care is the one who assesses the person’s capacity to make the care decision;
  • If the decision relates to a nursing or medical intervention, the assessor (decision maker) will be the clinician directly involved in the intervention at the time it needs to be made;
  • In safeguarding cases, it will be the practitioner who is undertaking the enquiry who will be the decision maker for decisions relating to the safeguarding process and provision of care and support.

However, in cases involving complex or major decisions it may be necessary to seek professional opinion, this could be from, for example, a GP or specialist (such as a Specialist Nurse).

  1. Where an individual lacks mental capacity to consent

If a capacity assessment finds that an individual does not have sufficient mental capacity to make a decision the decision must be made for them in their best interests. The following checklist should be considered, according to the Mental Capacity Act 2005, to reach a best interest decision:

  • Encourage the individual to take part as much as possible;
  • Identify all relevant circumstances;
  • Find out the individual’s past and present wishes, feelings, beliefs, values and any other factors they would be likely to consider if they had capacity, including any advanced statements;
  • Do not make assumptions based on the person’s age, appearance, condition or behaviour;
  • Assess whether and when the person might regain capacity to make the decision;
  • If the decision concerns life-sustaining treatment, then the best interest decision should not be motivated by the desire to bring about the person’s death;
  • Consult with others where it is practical and appropriate to do so. This includes anyone previously named as someone to be consulted; anyone engaged in caring for the person; close friends; relatives or others with an interest in the person’s welfare, any attorney and any Deputy appointed by the Court

Section 5 of the Act provides protection from liability when carrying out care or treatment as long as the person delivering the care has taken reasonable steps to establish that the person lacks capacity and when doing the act they reasonably believe that it is in the person’s best interests.

  1. Lasting Powers of Attorney, Court Appointed Deputies, Public Guardian and Court of Protection

Lasting Powers of Attorney (LPA) allows a person with capacity to appoint an attorney to act on their behalf if they should lose capacity in the future. There are two types of LPAs: for property and affairs and for health and welfare decisions.  Attorneys can only make decisions as detailed within the LPA.

Depending on the terms of their appointment court appointed deputies can take decisions on welfare, healthcare and financial matters as authorised by the Court of Protection but they are not able to refuse consent to life sustaining treatment. Deputies are only appointed if the Court cannot make a one-off decision to resolve the issues.

The Mental Capacity Act 2005 created a public body and an official to support the statutory framework:

  • The Court of Protection has jurisdiction relating to the whole Act, with its own procedures and nominated judges. It deals with issues arising in relation to the health and care and financial resources of people who lack mental capacity to manage aspects of these issues for themselves;
  • The Office of the Public Guardian (OPG) is the registering authority for LPA’s and deputies. It supervises deputies appointed by the Court and provides information to help the Court make decisions. It will also work with other agencies, such as the Police and Social Services, to respond to any concerns raised about the way in which an attorney or deputy is operating. If an older person has lost capacity and has not granted a power of attorney to anyone, it may be necessary to apply to the Court of Protection to appoint a ‘deputy’.  They are usually appointed to manage finances.  Deputies are usually family members, specialist solicitors or a local authority representative.

Deputies can be appointed to deal with health and welfare matters, but this is uncommon.  Usually a deputy is not needed for those matters, as health and social care professionals working with the person and their family make those decisions, or, if there is serious conflict, the Court of Protection decides.

The OPG can investigate allegations of abuse by a court-appointed deputy or a registered attorney.  They may refer the case to a local authority or investigate themselves.  If the case needs urgent action, for example to stop someone emptying an older person’s bank account, the OPG can initiate court proceedings through the Court of Protection and the court can freeze the funds or order whatever urgent action it thinks needs to be taken.

  1. Protecting individuals who lack capacity
    • Independent Mental Capacity Advocates (IMCA) – An IMCA is someone appointed to support a person who lacks capacity but has no one to speak for them. They have to be involved where decisions are being made about serious medical treatment or a change in the person’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;
    • Advance decisions to refuse treatment – there are statutory rules with clear safeguards so that people may make a decision in advance to refuse treatment if they should lack capacity in the future;
    • Criminal offence – The MCA introduced two new criminal offences of ill treatment or wilful neglect of a person who lacks capacity. A person found guilty of such an offence may be liable to imprisonment for a term of up to five years.

Further information can be found on the Office of the Public Guardian website

  1. General Principles in Terms of Mental Capacity and Safeguarding Adults
  • Issues of capacity and consent are central both in deciding whether an act or transaction was abusive and in deciding to what extent the adult can and should be asked to make decisions about how best to deal with the situation;
  • During the safeguarding adults process, it is essential that you are certain the individual understands the nature of the concerns and the choices available to them. All practicable steps must be taken to help a person make a decision, by providing them with the necessary information in the most accessible means and by facilitation of the communicating of that decision if such support is necessary (for example, translation services; access to a Makaton specialist);
  • Individuals should be enabled to make as many decisions for themselves as possible, or to participate as far as they can in decision making. Under the Mental Capacity Act 2005, they may be supported by an Independent Mental Capacity , which the local authority has a duty to provide in safeguarding adults cases, if they meet the criteria. The IMCA’s role is to support the person lacking capacity on the decision making process, although they are not decision makers themselves under the Act;
  • Capacity should be assessed in relation to the specific activity or issue that is being considered, which means that those supporting the individual have a duty to present information to them in a manner which they are likely to understand and in a timeframe that will facilitate their involvement. For example, if an individual currently lacks capacity because they are acutely ill, but there is a likelihood that they will regain capacity in the near future; then the decision should be delayed (if possible) until that time;
  • It should not be assumed that capacity, or lack of capacity, in respect to one area equates directly to another situation; for example, an ability to consent to one form of medical treatment may not mean that an adult is able to give their consent other forms of medical treatment. Equally, someone may not have capacity to make decisions of a large and complex nature but can make decisions or related aspects. For example, they may not have capacity to manage a monthly pension payment but can manage a weekly allowance;
  • Capacity may fluctuate, improve or deteriorate. Someone with mental health problems, for example, may be functioning well on medication and able to make a decision, but if they forget to take their medication and as a consequence their mental health declines, so might their ability to make decisions. It may also be possible to develop a person’s capacity to make decisions in some aspects of their life. This is fundamental to a lot of work with people with learning disabilities as new experiences and challenges are designed by workers to expand an individual’s capacity;
  • Capacity does not assume wise and prudent decisions are made by the individual. In safeguarding adults, we are sometimes faced with the possibility that someone is complicit in their abuse because they can see no other alternative or do not regard their experiences as abusive. How informed they are in their making of what may appear to be an unwise decision needs to be monitored and recorded by workers

The Mental Capacity Act 2005 does not cover decisions in relation to:

  • Consent to marriage or civil partnerships;
  • Consent to sexual relations;
  • Consent to divorce or dissolution of marriage or civil partnership;
  • Consent to a child being placed for adoption or consent to making an adoption order;
  • Discharge of parental responsibilities in areas not connected to a child’s property;
  • Consent under the Human Fertilisation and Embryology Act 1990

Some capacity issues may require consideration of other frameworks e.g. to sell a house, make a will, and sexual relationships. If an individual is unable to give consent to some acts or decisions, it may mean that a criminal offence has taken place for example, sexual relationships or financial transactions. If in doubt, especially if the decision to be made has significant consequences, legal advice should be sought.

Situations where the individual does have mental capacity

If it is decided that the individual does have capacity, has taken an informed decision and by that action is placing him or herself at risk, staff should consult with:

  • The individual themselves;
  • Their carer, if appropriate – with the person’s consent;
  • Their community supports;
  • Any other relevant agency, service or individual.

The Mental Capacity Act 2005 clearly states in its principles (Section 1) that an unwise decision does not equate to an incapacitated decision. This means that providers of services need to record fully and accurately, the decision making processes and the wishes of the individual thus evidencing that this is the person’s own, capacitated wish.

The purpose of this is to ensure that staff make every effort to assist the individual in understanding the risk that they are taking and the choices available to them to remove or reduce the risk.

There may be situations where the individual seems able in terms of their knowledge and understanding to make their own decisions, however, they may be subject to undue pressure to support a particular course of action. This could be pressure from or fear of a professional or family member. The involvement of an Independent Mental Capacity Advocate (IMCA) in accordance with the local policy may help in this matter as their role is to represent the individual and be impartial.

Staff will need to determine whether the individual is making the decision of their own free will or whether they are being subjected to coercion or intimidation.

If it is believed that the individual is exposed to intimidation or coercion, efforts should be made to offer the person ‘distance’ from the situation in order to facilitate decision making.

A safeguarding plan can be drawn up with the individual, but cannot be imposed upon them should they choose not to cooperate. The wishes of the person, if this is the case, should be fully recorded.

It is important to note that there may be situations where a capable adult’s decision to live with risk places other adults or children at risk of harm. In these situations there is a duty of care for safeguarding agencies to intervene and override the individual’s expressed wishes.

 

Situations where the individual does NOT have capacity

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 carer most directly involved with the person at the time.

If it is decided that the individual does not have capacity, then staff should act in the best interests of the individual.

In safeguarding cases, it will be the practitioner who is undertaking the enquiry who will be the decision maker for decisions relating to the safeguarding process and provision of care and support. In cases where the Safeguarding Manager feels that the individual is unable to give informed consent, a Safeguarding Adults Strategy Discussion/Meeting should be called in order to undertake or commission a multi-disciplinary Assessment. If they meet the criteria, there will be a duty to instruct an Independent Mental Capacity Advocate to support and speak for the person lacking capacity.

In some cases, the same person may make different types of decisions 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 are also an attorney, appointed under LPA, they may also make specific decisions concerning the person’s property and affairs or personal welfare.

A decision may also, at times, 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. Alternatively, the decision may be made by one practitioner within the team. A different member of the team may then implement that decision, based on what the team has ascertained to be the person’s best interests.

Good practice dictates that in order to determine best interests staff may need to consult those that know the individual well, and concerned with his/her welfare, in addition to an appropriate range of professionals relevant to the decision being made, e.g. medical treatment requires that a medical practitioner is satisfied that the person has capacity to consent. As mentioned earlier, this may also include the alleged abuser but this is only when and if appropriate to do so.

The extent of such a consultation needs to be proportionate to significance of the decision for the individual.

When an individual is unable to make a decision about a serious or significant matter, and there is a dispute or dilemma about what is in their best interests e.g. where a person should live, contact with a suspected abuser, withdrawal of medical treatment, it may be appropriate to apply to the Court of Protection for the Court Orders and Declarations to be made under the Mental Capacity Act 2005.

The Mental Capacity Act Section 5 can be used to transport someone who lacks capacity to a care home or hospital if it is in the best interests of the person and the least restrictive option for care and treatment, but not to just distance them from an abuser.

This legislation involves what may be regarded as sanctions against the abused person NOT the alleged perpetrator.

You should seek advice from your own agency’s legal advisor with regard to referral to the Court of Protection in relation to compulsory removal, as appropriate, prior to any action to be taken.

Suggested further resources regarding mental capacity assessment:

Mental Capacity Guidance Note: Assessment and Recording of Capacity | 39 Essex Chambers

Mental Capacity Law and Policy (Alexander Ruck Keene KC is an experienced barrister, writer and educator. His practice is focused on mental capacity, mental health and healthcare law.  This is his advisory website, providing resources and expert commentary on some of the most difficult mental capacity issues).