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Mental Capacity Act practice guidance

Part 7

Being a decision-maker

[Code of Practice chapter 5.8-5.12]

What does decision-maker mean?

The MCA does not lay down professional roles or require certain qualifications to undertake assessments. The capacity assessment should be done by the person who is proposing to undertake an action or make a decision. This person is the decision-maker.

Who is the decision-maker?

Family members and informal carers will be decision-makers for actions that they undertake. A care assistant will be the decision-maker if the decision is, for instance, about what clothes to put on that morning. They would not be expected to complete a formal capacity assessment, but to have a ‘reasonable belief’ that the person lacks capacity for those decisions. (Code of Practice 4.44) (Part 24:  MCA and family and informal carers) (Part 25: MCA and untrained workers)

Professionals are the decision-makers for actions they are responsible for. A doctor or other health professional will be the decision-maker about someone’s capacity for the treatment they are prescribing, or initiating a care pathway. A nurse will be the decision-maker about the treatment or care that they are delivering or administering. A social care professional will be the decision-maker about a move into residential care or commissioning a package of care. (Part 6: How to assess capacity) (Part 8: Best interests decisions) (Part 10: How to record decisions)

This may mean that the decision-maker is not the person who knows the individual best. Determining who the decision-maker is depends on the decision and the context, and not on the circumstances of the individual

If someone lacks capacity to make a decision for themselves any professional will need to involve family, friends, supporters, and an Independent Mental Capacity Advocate if appropriate, in the decision. The professional needs to have a genuinely open mind about the outcome of a decision. It may be appropriate to have a Best Interests Meeting to explore any differences (Part 9: Best Interests Meetings) (Part 11: Resolving disputes)

A public authority (local authority or health care trust) may have to make a decision which goes against a family view. The public authority must be able to show that any care they deliver is better for the person than the care the family want.

Involving other people

Many decisions will be multi-disciplinary in practice, but the decision-maker will be the person ultimately responsible for making and recording the decision.

A decision-maker must seek information from other people. For instance, a social worker making a decision about someone’s capacity to decide about their care needs on discharge from hospital will seek information from family and friends, an IMCA (if appointed), ward staff, people who cared for the person in the community and anyone with knowledge of the person.

Any decision-maker can seek advice from anyone else. It may be appropriate to consult a psychiatrist or psychologist, speech and language therapist or other specialist.

Anyone making an assessment should seek information about how the person is best able to communicate and how their understanding can best be enhanced. Family and friends are likely to be able to give this information.

If there is no one who can be consulted about the decision who is not paid to provide care, and no family or friends, the person is described as ‘unbefriended’. For significant decisions, defined as a change in accommodation, serious medical treatment or an extended stay in hospital or residential care the person should be referred for a report from an Independent Mental Capacity Advocate (IMCA). The IMCA will provide a report about the person’s situation and views: they will not make the decision and the decision-maker retains their responsibility. (Part 15: Independent Mental Capacity Advocates)