Legal protection when applying MCA
If personal care is given to someone who has not consented to it, it is assault. If a professional enters the house of someone who has not consented to them coming in, it is trespass. If someone who has not consented is taken to hospital, it is kidnap.
Under MCA protection from prosecution is given to anyone who performs these acts if:
- the person’s capacity for the relevant decision has been assessed
- they lack capacity
- it is in their best interests to perform the act
- there is no Advance Decision against the act. (Part 17: Advance Decisions and Advance Statements)
This means that if someone’s capacity and best interests have not been assessed there is no legal protection. If the decision-making is not recorded there is no means of evidencing that the decisions were properly reached if the decision is challenged.
This is the legal sanction of MCA: if decisions have not been reached in the correct way there is no legal protection available.
Some professionals may talk about a ‘section 5 act’. This means a decision which can be taken under MCA; a decision which does not need the extra processes of the Mental Health Act, Deprivation of Liberty Safeguards or a determination from the Court of Protection. Performing a section 5 act simply means putting into action the best interests decision.