Mental Capacity Act
The Mental Capacity Act has been in place since 1 October 2007. It applies to all sorts of situations where health and social care (such as contact, living arrangements, and financial decisions) are made by and for people aged 16 and over. It requires that people are involved as much as is possible in decisions about them. People should be enabled to make decisions for themselves where they have capacity to do so.
The Act sets out a framework for decision making where the person does not have the capacity to make their own decision. The Act enables people to plan ahead for their care and treatment if they think they may lack capacity in the future. The Act is supported by a Code of Practice, more information about which can be found by following this link.
The Act requires all people who are paid to work with people who may lack capacity to use Code of Practice.
What is mental capacity?
Every day, we make decisions about our lives. These decisions could be about simple things like what we eat and what we wear. They could also be about major issues, such as our health, our care and our finances. Our ability to make a decision is known as mental capacity.
Who does the Mental Capacity Act affect?
People who may have difficulty making a decision including people:
- who have a learning disability
- who have a mental health condition such as depression, dementia, or schizophrenia
- who have a brain injury or have had a stroke
- who are under the influence of alcohol or drugs
This list is not exhaustive and most importantly, it does not mean that because a person has a condition similar to the above, that they do in fact lack capacity to make a decision.
The Mental Capacity Act also affects people who have to make a decision on behalf of those who lack capacity to make it. These people might be:
- carers/family members
- doctors (GPs and psychiatrists)
- nurses and healthcare assistants on the ward or in the community
- social workers
- advice workers
- any of us
What are the main principles of the Mental Capacity Act?
The five key principles of the Mental Capacity Act are:
- A person must be assumed to have capacity to make a decision unless it is shown otherwise.
- Someone cannot be treated as lacking capacity until all practicable steps have been taken to help them to make their own decision. This could include help from a speech therapist, using sign language, having information provided in different formats, or giving treatment which will improve their mental condition. Even if someone finds some decisions difficult, they may still be able to take other decisions themselves. If someone has to make a decision for someone else they should still involve that person as much as possible.
- Just because someone wants to do something which most people consider unwise, strange or eccentric, this does not necessarily mean they lack capacity.
- If a decision is made for someone else it must be in their best interests.
- Any interference in someone's right to make decisions must take the form of the least restrictive option, and respect their basic rights and freedoms.
What is an Independent Mental Capacity Advocate (IMCA)?
An IMCA supports and represents people who lack capacity to make a decision when there is no one else to consult and when certain serious decisions might be about to be made on their behalf. Those decisions are either about serious medical treatment or a change of accommodation. The IMCA looks at the way the decision is being made but does not make the decision on behalf of the person they represent. They are independent of Nottinghamshire Healthcare NHS Foundation Trust, and always aim to ensure that the best interests of the person who lacks capacity are being considered by the decision maker.
How does the Mental Capacity Act affect families and carers?
- It helps everyone to understand how and when they can act on behalf of someone who lacks capacity.
- It makes clear the safeguards and limitations if you are making a decision for someone else.
- It says that families and carers should be consulted when professionals make decisions for others e.g. a doctor making a decision about treatment.
What else does the Mental Capacity Act do?
- The Act set up a Court of Protection and an Office of the Public Guardian to safeguard people who lack capacity.
- The Act contains a criminal offence of ill treatment or wilful neglect of a person who lacks capacity. Several prosecutions have resulted in convictions since the Act came into force.
Where can you get more information?
The Government has produced a lot of information on their website for professionals and for members of the public. You can also read the information sheet below:
What are the Mental Capacity Act Deprivation of Liberty Safeguards (DOLS)?
The Mental Capacity Act Deprivation of Liberty Safeguards (DOLS) are procedures which were incorporated into the Mental Capacity Act in 2009. These Safeguards protect those people in care home or hospital accommodation who lack capacity to consent to their care, are not detained under the Mental Health Act but need to be looked after in a particularly restrictive way in their best interests.
The term ‘deprivation of liberty' means that the person is both under continuous supervision and control and in addition, is not free to leave. Deprivation of liberty can only be lawful under the Mental Health Act, the Mental Capacity Act DOLS process or by an order of the Court.
The MCA DOL Safeguards are particularly applicable to patients who have dementia or who have learning disabilities but may apply to patients who have other conditions. Where a patient is deprived of their liberty (and the Mental Health Act is not applicable) the Trust must apply to the Local Authority for permission to deprive the person of their liberty. The care regime in the hospital will then be examined by the Local Authority.
Following their assessor's visit to the patient in the hospital, the Local Authority may (or may not) give permission for the restrictions to continue for a defined length of time and may place conditions on the Trust. This is known as a DOL Safeguards Authorisation. The authorisation is reviewable and is open to challenge by the patient or those representing the patient. Any patient who is then subject to the Deprivation of Liberty Safeguards is allocated a Relevant Person's Representative (RPR) whose role it is to support the patient and if necessary, to challenge the authorisation. The Government has produced a lot of information about deprivation of liberty on their website. You can also read the information sheet below:
How does the Mental Capacity Act enable me to plan ahead?
There are three key ways which you might want to use in order to plan for a time when you may lack capacity. These are lasting power of attorney, advance decisions to refuse treatment and advance statements. Click here to find out more about how the Mental Capacity Act can help you plan ahead.
How can I find out more?
If you want to set up a lasting power of attorney you can consult a solicitor or do it yourself. You do not have to go to a solicitor to complete the forms. You can download the form from the GOV.UK website by clicking here. You can also get a copy of the Code of Practice and other information from this website.
Visit the Government's pages on the Act for copies of the MCA information leaflet in a variety of languages as well as information aimed at unpaid carers, people who want to plan ahead and professionals working with adults who may not have capacity.