The Mental Capacity Act 2005 governs decision-making on behalf of people, who may lose the capacity to make decisions for themselves at some point in their lives, or where an incapacitating condition has been present since birth.
The Mental Capacity Act applies to anyone aged 16 or over who may not have the capacity to make some decisions for themselves. It defines incapacity as being unable to make a particular decision at a particular time.
A person’s capacity can vary from day to day, and from issue to issue. Someone could have capacity to make some, but not all, of the decisions they need to make. A lack of capacity could be because of:
- a learning disability
- mental health problems
- brain injury
- dementia
- alcohol or drug use
- side effects of medical treatment or a serious illness or disability
- any other mental impairment or disability.
The Mental Capacity Act will help and support you if you:
- currently find it difficult to make decisions, sometimes or all of the time
- want to plan ahead in case you are unable to make decisions in the future
- care for someone who is unable to make decisions for themselves.
The Mental Capacity Act is accompanied by a Code of Practice which provides more in-depth guidance for professional staff such as social workers. There are five key principles which professionals must follow.
- A person is assumed to have capacity, unless it is clearly demonstrated that they lack capacity for a particular decision. The Code of practice sets out how capacity is assessed.
- A person must be supported as much as possible to make their own decisions before anyone concludes that they lack capacity and makes a decision on their behalf.
- A person is not to be treated as unable to make a decision merely because they make an unwise decision – making a decision that may seem to be unwise or strange should not be taken as evidence of a lack of capacity.
- If a person lacks capacity to make a decision, any decisions or actions taken on their behalf will be taken in their best interests – and not in the interests of other people.
- If staff have a variety of options,they will consider how they can decide or act in a way that will minimise any restrictions on the freedoms and rights of the person without capacity.
The Mental Capacity Act can be used to make all decisions for someone who lacks capacity. Everything from what to have for lunch to where to live, to what medical treatment to have to how to spend your money can be decided under the Mental Capacity Act.
Some decisions cannot be made under the Mental Capacity Act – these are personal decisions such as the decision to have sex, get married or divorced or the decision about how to vote.
There are also some decisions which will need a ruling from the Court of Protection before they can proceed. However these are usually only situations where serious medical treatment is needed, for example:
- decisions about withdrawing food and water from a person in a permanent vegetative state or a minimally conscious state
- organ or bone marrow donation by a person who lacks capacity to consent
- cases involving non-therapeutic sterilisation of a person who lacks capacity to consent.
What happens when someone does not have capacity?
If a health or social care professional has to make a decision for somebody they will use the Mental Capacity Act Code of Practice to make an assessment of their capacity to make that particular decision. An assessment must be done to ensure that the person definitely does not have capacity, before any decisions are made. The professional will talk to the person and anyone else who is appropriate such as carers, family and doctors to make a decision in the person’s best interests.
A formal Best Interest Meeting may be needed to make decisions for more complex issues and significant changes, such as decisions about long-term care or moving into a care home. A formal meeting can ensure that the person has the chance to have their opinions heard and recorded, and can include other relevant people as appropriate.
The Mental Capacity Act gives a basic checklist of the sort of things our staff will consider, such as:
- can the decision be delayed – in case the person can make the decision in the future
- has all the relevant information been taken into account
- have the person’s wishes, feelings, values and beliefs been considered, including anything they have said or recorded that indicates what their views on a decision might be
- have the views of family members, parents, carers and other people interested in the person’s welfare been considered, if this is practical and appropriate
- have any decisions have been based merely on the person’s appearance, age, medical condition or behaviour
- if the decision concerns providing or withdrawing life-sustaining treatment, decisions will not be motivated by a desire to bring about the person’s death or be based on assumptions about their quality of life
- anything else that is relevant must be considered, even if it is not included in the checklist.
We will talk through all options with the person involved and their carer, family or their independent mental capacity advocate before making a final decision. We will always look to make the best decision possible for that person, while making decisions which are proportional, practical and sustainable.
What if the person or their family do not agree with the decision?
If the person, their family or carer disagrees with the decision proposed by a health or social care professional they must raise this with the professional as soon as possible. The Mental Capacity Act is designed to allow open and accessible decision-making at every stage and professionals need to be able to show how they made the decision and followed the Mental Capacity Act principles.
If a resolution is not possible we can discuss mediation and you can seek a second opinion or take legal advice. When all informal routes have failed the decision can be taken to the Court of Protection.