Mental Capacity Act 2005

The Mental Capacity Acts 2005 (the Act) primary purpose is to provide a legal framework for acting and making decisions on behalf of adults who lack the capacity to make particular decisions for themselves. The Act extends only to England and Wales. Similar legislation has already been passed in Scotland in the form of the Adults with Incapacity (Scotland) Act 2000. Currently Northern Ireland does not have mental capacity legislation so mental capacity issues are dealt with under common law.

The Act aims to clarify a number of legal uncertainties and to reform and update the current law where decisions need to be made on behalf of others. The Act will govern decision-making on behalf of adults, both where they lose mental capacity at some point in their lives, for example as a result of dementia or brain injury, and where the incapacitating condition has been present since birth. It covers a wide range of decisions, on personal welfare as well as financial matters and substitute decision-making by attorneys or court-appointed 'deputies', and clarifies the position where no such formal process has been adopted. The Act includes new rules to govern research involving people who lack capacity and provides for new independent mental capacity advocates to represent and provide support to such people in relation to certain decisions. The Act provides recourse, where necessary, and at the appropriate level, to a court with power to deal with all personal welfare (including health care) and financial decisions on behalf of adults lacking capacity.

Five key principles

The Act is underpinned by five key principles (Section 1, MCA)

Principle 1: A presumption of capacity – every adult has the right to make his or her own decisions and must be assumed to have capacity to do so unless it is proved otherwise.

Principle 2: Individuals being supported to make their own decisions – a person must be given all practicable help before anyone treats them as not being able to make their own decisions.

Principle 3: Unwise decisions – people have the right to make decisions that others might regard as unwise or eccentric. You cannot treat someone as lacking capacity for this reason. Principle 4: Best interests – anything done for or on behalf of a person who lacks mental capacity must be done in their best interests.

Principle 5: Less restrictive option – someone making a decision or acting on behalf of a person who lacks capacity must consider whether it is possible to decide or act in a way that would interfere less with the person’s rights and freedoms of action, or whether there is a need to decide or act at all. Any intervention should be weighed up in the particular circumstances of the case.

Having mental capacity means that a person is able to make their own decisions. You should always start from the assumption that the person has the capacity to make the decision in question (principle 1). You should also be able to show that you have made every effort to encourage and support the person to make the decision themselves (principle 2). You must also remember that if a person makes a decision which you consider eccentric or unwise, this does not necessarily mean that the person lacks the capacity to make the decision (principle 3). Under the MCA, you are required to make an assessment of capacity before carrying out any care or treatment – the more serious the decision, the more formal the assessment of capacity needs to be.

You might need to assess capacity where a person is unable to make a particular decision at a particular time because their mind or brain is affected by illness of disability. Lack of capacity may not be a permanent condition. Assessments of capacity should be time- and decision-specific. You cannot decide that someone lacks capacity based upon age, appearance, condition or behavior alone.

The MCA says that a person is unable to make their own decision if they cannot do one or more of the following four things:

  • understand information given to them
  • retain that information long enough to be able to make the decision
  • weigh up the information available to make the decision
  • communicate their decision – this could be by talking, using sign language or even simple muscle movements such as blinking an eye or squeezing a hand.

Every effort should be made to find ways of communicating with someone before deciding that they lack capacity to make a decision based solely on their inability to communicate. Also, you will need to involve family, friends, carers or other professionals.

If a person has been assessed as lacking capacity then any action taken, or any decision made for or on behalf of that person, must be made in his or her best interests (principle 4). The person who has to make the decision is known as the 'decision-maker' and normally will be the carer responsible for the day-to-day care, or a professional such as a doctor, nurse or social worker where decisions about treatment, care arrangements or accommodation need to be made.

What is 'best interests'?

The Act provides a non-exhaustive checklist of factors that decision-makers must work through in deciding what is in a person’s best interests. A person can put his/her wishes and feelings into a written statement if they so wish, which the person determining capacity must consider. In addition, people involved in caring for the person lacking capacity have to be consulted concerning a person’s best interests.

If a person has been assessed as lacking capacity then any action taken, or any decision made for or on behalf of that person, must be made in his or her best interests

Code of Practice

The Code explains how the MCA works on a day-to-day basis and provides guidance to those working with people who may lack capacity. The Code explains the key features of the MCA in more detail, as well as some of the practical steps that people using and interpreting the law need to take into consideration.

Mental Health legislation in Northern Ireland

Currently Northern Ireland does not have mental capacity legislation so mental capacity issues are dealt with under common law.

The Bamford Review of Mental Health and Learning Disability was set up in late 2002 to examine how services for people with mental illness or learning disabilities could be improved. On 31st October 2006, the Bamford Review closed formally.

Following the Bamford review a policy consultation document was produced – Legislative framework for mental capacity and mental health legislation in Northern Ireland – which advocates:

  • a new Mental Capacity Bill to be enacted in 2011;
  • for mental health legislation, either a modernised 1986 Order or a new Bill if, in drafting new Clauses it is deemed to be more appropriate, to be enacted in the same time frame as the Mental Capacity Bill

For more information see the Northern Ireland Executive website

Adults with Incapacity (Scotland) Act 2000

The Adults with Incapacity (Scotland) Act 2000 ('the Act') provides a framework for safeguarding the welfare and managing the finances of adults who lack capacity due to mental disorder or inability to communicate.

All decisions made on behalf of an adult with impaired capacity must:

  • benefit the adult
  • take account of the adult's past and present wishes
  • restrict the adult's freedom as little as possible while still achieving the desired benefit
  • encourage the adult to use existing skills or develop new skills
  • take account of the views of others with an interest in the adult's welfare.

Under the Act a number of different agencies are involved in supervising those who take decisions on behalf of the adult.

  • the Public Guardian has a supervisory role and keeps registers of attorneys, people who can access an adult's funds, guardians and intervention orders
  • local authorities look after the welfare of adults who lack capacity
  • the Mental Welfare Commission protects the interests of adults who lack capacity as a result of mental disorder

Under the Act, the main ways that other people can make decisions for an adult with impaired capacity are:

Power of Attorney

Individuals can arrange for their welfare to be safeguarded and their affairs to be properly managed in future, should their capacity deteriorate. They can do this by giving another person (who could be a relative, carer, professional person or trusted friend) power of attorney to look after some or all of their property and financial affairs and/or to make specified decisions about their personal welfare, including medical treatment.

All continuing and welfare powers of attorney granted from 2 April 2001 will need to be registered with the Public Guardian to be effective.

Medical treatment decisions (Part 5 of the Act). The Act allows treatment to be given to safeguard or promote the physical or mental health of an adult who is unable to consent. The principles apply to medical treatment decisions as to other areas of decision-making. Where a welfare attorney or guardian has been appointed with health care decision-making powers the doctor must seek his/her consent where it is practicable and reasonable to do so. Where the adult has no proxy a doctor is authorised to provide medical treatment, subject to certain safeguards and exceptions.

Where there is disagreement a second medical opinion must be sought. The Mental Welfare Commission holds a list of specialist doctors for this purpose. Cases can also be referred to the Court of Session in certain circumstances.

Other health care staff may also be authorised to provide treatment to an adult who is unable to give consent, so long as the treatment required is within his/her specialism, for example, a dentist.

Consent to Research (Part 5 of the Act). The Act permits medical research involving an adult incapable of giving consent subject to certain safeguards and exceptions.

Codes of Practice The law in Scotland generally presumes that adults are capable of making personal decisions for themselves and of managing their own affairs.

It is important to remember that having a diagnosis of, for example, dementia does not mean, of itself, that the person is unable to make decisions for him/herself. It is also important to remember that just because someone acts unwisely - whether or not mental disorder is present - does not mean that capacity is lacking.

For the purposes of the Act, "incapable" means incapable of:

  • acting on decisions; or
  • making decisions; or
  • communicating decisions; or
  • understanding decisions; or
  • retaining the memory of decisions.

in relation to any particular matter due to mental disorder or inability to communicate because of physical disability.

Principles to be followed

The Act aims to protect people who lack capacity to make particular decisions, but also to support their involvement in making decisions about their own lives as far as they are able to do so. Anyone authorised to make decisions made on behalf of someone with impaired capacity must apply the following principles:

Principle 1 – benefit Any action or decision taken must benefit the person and only be taken when that benefit cannot reasonably be achieved without it.

Principle 2 - least restrictive option Any action or decision taken should be the minimum necessary to achieve the purpose. It should be the option that restricts the person's freedom as little as possible.

Principle 3 - take account of the wishes of the person In deciding if an action or decision is to be made, and what that should be, account must be taken of the present and past wishes and feelings of the person, as far as this may be ascertained. Some adults will be able to express their wishes and feelings clearly, even although they would not be capable of taking the action or decision which you are considering. For example, he/she may continue to have opinions about a particular item of household expenditure without being able to carry out the transaction personally. The person must be offered help to communicate his or her views. This might mean using memory aids, pictures, non-verbal communication, advice from a speech and language therapist or support from an independent advocate

Principle 4 - consultation with relevant others Take account of the views of others with an interest in the person's welfare. The Act lists those who should be consulted whenever practicable and reasonable. It includes the person's primary carer, nearest relative, named person, attorney or guardian (if there is one).

Principle 5 - encourage the person to use existing skills and develop new skills

Supervision and regulation

Under the Act four public bodies are involved in the regulation and supervision of those authorised to make decisions on behalf of a person with incapacity. These are: the Office of the Public Guardian (Scotland), the Mental Welfare Commission for Scotland, the courts and local authorities.