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Mental Capacity Act practice guidance

Part 3

Scope of the MCA

Code of Practice chapter 1

Who needs to follow the Mental Capacity Act?

Everyone working with, living with or caring for someone who may lack capacity must follow the Mental Capacity Act (MCA) and the Code of Practice.

Professionals need to record their decisions formally, but informal carers also need to abide by the principles and procedures of the MCA.
(Part 24: MCA and family and informal carers) (Part 10: How to record decisions)

Who does MCA apply to?

The MCA applies to everyone over the age of 16 who may lack capacity to make a particular decision at a particular time. There are some specific sections that only apply to people over 18, but most of the legislation applies to everyone over 16. (Part 22: The legal position of 16-18 year olds)

What sort of loss of capacity does MCA apply to?

The MCA applies to any possible loss of capacity – so to someone who is temporarily drunk and to someone who has profound learning disabilities. If a decision needs to be made the question is about someone’s ability to make that decision at that point in time. (Part 6: How to assess capacity)

Which decisions can be made under MCA?

The MCA can be used to make nearly 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 MCA.

This places considerable responsibility on people making these decisions, but the MCA does not give more power. Decisions have always been made for people who can’t make them for themselves: the MCA provides a legal framework for ensuring the decisions are made and recorded in a consistent and transparent way.

The MCA applies to nearly all decisions. If someone doesn’t have capacity to make their own decisions the MCA processes must be used and recorded, even if the person is able to co-operate and is happy to go along with what is proposed.

There are some decisions which are excluded from MCA – decisions which cannot be made under the best interests process. These are listed in MCA s27and Code of Practice 1.10. They include consenting to sexual relations, voting, consenting to the adoption of a child or making other decisions about a child, consenting to marriage or civil partnership, consenting to divorce on the grounds of two years separation or any actions connected to assisted suicide, manslaughter or murder. (Part 6: How to assess capacity) (Part 8: Best interests decisions) (Part 10: How to record decisions)

What about emergencies?

The Principles of MCA should always be followed. However in an emergency it may not be possible to assess capacity or to find out necessary information. The law regarding emergency treatment remains unchanged by MCA; the common law doctrine of necessity is still valid, allowing emergency treatment and care to be given. (Part 29: Emergencies)

How does MCA relate to policies about consent held by hospital trusts?

The MCA underpins all decision-making processes, so any consent policy will have been written to comply with MCA. (Part 28: Consent and implied consent) (Part 14: Restraint)