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Mental Capacity Act practice guidance

Part 24

MCA and family and informal carers

What responsibilities does MCA put on family and friends?

The Mental Capacity Act applies to everyone who is making a decision or caring for someone who may lack capacity to make a decision for themselves. This means that family and friends also need to take notice of the MCA and its Principles. (Part 3: The scope of the MCA)

However, MCA does not expect family and friends to undertake full assessments and record best interests decisions.

MCA s5 describes the person undertaking the act as needing to take reasonable steps to decide if the person has capacity. The person undertaking the act must reasonably believe the act to be in the best interests of the person who lacks capacity.

Anyone, including family and friends, needs to be able to explain how they have made decisions and why they believed it to be in the person’s best interests.

Principles of the Mental Capacity Act (MCA section 1)

  • Principle 1 states that everyone should be assumed to have capacity. Family and friends will have a good idea of which decisions someone can make for themselves. It is important not to make too many assumptions and to enable the person to take as big a role in decisions as possible. If there is doubt about whether the person has capacity this should be assessed. If the person lacks capacity, a best interests decision needs to be made.
  • Principle 2 states that every effort should be made to help people to make their own decisions. There may be communication aids, advocates or friends who can help someone to make some decisions for themselves.
  • Principle 3 states that because someone makes an unwise decision, this does not necessarily mean they don’t have capacity to make that decision. For instance, all young adults make decisions that their parents feel are unwise: if the young adult may lack capacity it will be particularly important to be clear that they have capacity to make that decision. If they do have capacity then their decision must be respected.
  • Principle 4 MCA states that all decisions and acts must be in the best interests of the person who lacks capacity. This means that decisions must be made about that person and not in the best interests of the whole family.
  • Principle 5 MCA states that decisions taken must be the least restrictive of the person’s freedom as possible. The decisions must follow the person’s wishes as closely as possible and give them as much choice as possible.

In addition to the five Principles it is important to remember that MCA requires decision specific assessments of a person’s capacity. Someone may not be able to make some decisions, but can make others.

What is reasonable belief?

A good personal knowledge of someone’s abilities and communication will usually give family or friends a good reasonable belief about someone’s capacity. If there is medical or other professional information available about someone’s capacity this should be borne in mind

Always remember that the law expects anyone who makes decisions to be able to describe why they have made that decision ,and what they have taken into consideration in reaching their decision.

When do professionals have to come in?

If professionals are making any decisions about any care or treatment, they will need to make their own assessments of the person’s capacity and best interests. (Part 6: How to assess capacity) (Part 7: Being a decision-maker)

A professional making a decision has a legal obligation to consult with people who care for the person who lacks capacity. (Part 8: Best interests decisions)

The professional will be responsible for making the decision, and they may not make the same decision that family or friends would make. (Part 7: Being a decision-maker) Any professional involved must be able to share information about how they have made their decision and how they have applied the law.

If there is disagreement in a family about someone’s capacity or best interests it is possible to ask for help in making decisions. (Part 11: Resolving disputes) If family or friends disagree with a decision, consider if the Court of Protection should be asked to make the decision. The organisation needs to show how the care they can provide is better than care the person’s family can provide or choose. (Part 23: The Court of Protection)

Mencap has produced an MCA Resource Pack which explains MCA for families