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Briefing 1: Overview and Key Provisions of the Mental Capacity Act 2005
This briefing is one of a series about the Mental Capacity Act 2005 (MCA) which came into force on 1 October 2007 and provides an overview of the main provisions of the MCA.
1. Who does the Mental Capacity Act affect?
2. What does "lacking capacity" mean?
3. What does the MCA mean by "in relation to a matter" and "at the material time"?
4. If a person has a mental health diagnosis, does this mean he or she lacks mental capacity?
5. If a person is "sectioned", does this mean he or she lacks mental capacity?
6. What happens if a person lacks the capacity to make a particular decision?
7. The MCA Principles
8. Assessing mental capacity
9. Deciding what is in a person’s "best interests"
10. Care and treatment under the MCA
11. Restraint
12. Planning ahead (1) - Lasting Powers of Attorney
13. Planning ahead (2) - Advance Decisions
14. New Court of Protection
15. Court appointed Deputies
16. The Public Guardian
17. The Independent Mental Capacity Advocate (IMCA)
18. Ill-treatment or neglect
19. Code of Practice
20. Further information
1. Who does the Mental Capacity Act affect?
The MCA applies to England and Wales. It affects anyone whose mental capacity to make decisions is affected by (what the Act refers to as) "an impairment of, or a disturbance in the functioning of, the mind or brain." In some cases, the person’s capacity may be permanently affected, perhaps because they have a form of dementia, a learning disability or have suffered a brain injury. But in others, the person’s capacity might be affected only for a temporary period, perhaps because they are confused or unconscious because of an illness or treatment for an illness.
The MCA applies only to people who experience mental distress where that distress is so severe that it affects the person’s ability to make decisions. For some people, the ability to make certain decisions is permanently affected as a result of their experience of mental distress. However, many people who experience mental distress are capable of making all of their own decisions. For others, the ability to make some decisions is affected occasionally and only for short periods, perhaps when they feel at their lowest ebb.
2. What does ‘lacking capacity’ mean?
Section 2 of the MCA says: "…a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain". The impairment or disturbance can be permanent or temporary.
Section 3 says that a person is unable to make a decision if he or she is unable to do one or more of the following things:
- understand the information relevant to the decision;
- retain the information for long enough to be able to make a decision;
- use or weigh up the information as part of the process of making the decision;
- communicate the decision by any possible method, such as talking, using sign language, squeezing someone’s hand and so on.
3. What does the MCA mean by "in relation to a matter" and "at the material time"?
In the past, health and social care professionals and members of the public have tended to make general statements about the capacity of people who find it difficult to make all of their own decisions. Medical notes might state "this person does not have capacity" with the result that the person was treated as being unable to make any of his or her own decisions. However, many people who have lost the mental capacity to make some decisions can still make other decisions. In fact, some people are able to make a particular decision on one day but be unable to make the same decision on the next, possibly because their experience of mental distress varies from day to day.
When the MCA uses phrases such as "in relation to a matter" and "at the material time", it is making clear that mental capacity must be considered in relation to a specific decision and that it is not a status that a person does or does not have. So people should not be referred to as "lacking capacity" or "having capacity". When considering the mental capacity of a person a correct question to ask would be: "Is this person, at this particular time, capable of making this particular decision?" The wrong question would be: "does this person have capacity?" This is very important for people who experience mental distress. For example, people who hear distressing voices may feel unable to make a certain decision when the voices are at their most distressing but feel much more able to make the same decision on a day when they are not hearing the voices.
The level of capacity needed by a person also depends on the decision to be made. For example, a person probably needs less mental capacity to make decisions about everyday matters, such as what to have to eat or where to go, than they do when they are deciding whether to buy or rent a new home.
4. If a person has a mental health diagnosis, does this mean he or she lacks mental capacity?
The answer to this question is "no, not necessarily". Many people who have been given a mental health diagnosis by a doctor still have the capacity to make all of their own decisions. Other people given a mental health diagnosis may lack mental capacity to make some, but not all, decisions. For example, a person who hears voices and has been given a diagnosis of "schizophrenia" may feel unable to make a certain decision when the voices are at their most distressing. However, that person may feel able to make the same decision on a day when he or she is not hearing the voices.
5. If a person is "sectioned", does this mean he or she lacks mental capacity?
Again the answer to this question is "no, not necessarily". A person could be detained (or "sectioned") under the Mental Health Act 1983 (the MHA) but still have capacity to make all of his or her own decisions. However, if the decision relates to treatment for mental disorder under the MHA, the law allows a person to be treated against his or her will and this is the case even if the person has the mental capacity to make decisions about that treatment. The important court case of Re C [1] from several years ago illustrates this point very well.
In Re C [1] an adult patient detained in Broadmoor hospital developed gangrene in his leg and the doctors decided that it should be amputated in order to keep him alive. The patient was diagnosed as having "paranoid schizophrenia" and, since he was detained under the MHA, could be treated with medication for his "mental disorder" whether he had mental capacity to agree to this medication or not. However, the doctors could not amputate his leg under MHA powers since this was not treatment for "mental disorder". They had to ask for the patient’s consent to perform the amputation and he refused this treatment. Without this consent, the only way the doctors could perform the amputation was if the High Court decided that the patient did not have mental capacity to make this decision and then declared that the amputation was in his best interests (the MCA was not in force at the time but the law concerning capacity and best interests was very similar to the law now in force under the MCA). Despite the patient’s mental distress and diagnosis, the court decided that he did have mental capacity to make the decision about his gangrene and the doctors were unable to operate without his consent.
[1] - Re C [1994] 1 WLR 290
6. What happens if a person lacks the capacity to make a particular decision?
The MCA allows people to plan for what should happen if they ever become unable to make particular decisions in the future. For example, it allows people to make advance decisions (see 12 later). If a person has not made plans and at some point becomes unable to make a particular decision, the MCA says that someone else may make that decision. This could be anyone – a friend, a relative, an informal carer, a professional carer, a doctor, a social worker, a nurse and so on. Even if someone else makes the decision, the MCA says that the person who lacks the capacity to make the decision should still be involved as much as possible in the process. It also says that any decisions or action taken on behalf of a person who lacks capacity to take these decisions or actions must be taken in the person’s best interest (see 9 below).
7. The MCA Principles
Section 1 of the MCA sets out five principles. These must be applied and followed by friends, relatives, and carers who are helping someone under the MCA and by any professional working with someone under the Act.
7.1 Presumption of capacity
Section 1(2) of the MCA states that a person must be assumed to have capacity unless it is established that he or she lacks capacity. This means that people must not assume that the person does not have the mental capacity needed in any given situation just because, for example, they think the person is too old or the person has a disability or mental health problem.
7.2 Maximising decision-making capacity
The presumption of capacity cannot be displaced unless all practical steps to help the person make the decision have been taken without success, in accordance with the principle in section 1(3). This means that before it is decided that a person lacks capacity to make a decision for him or herself, as much as possible must be done to help the person make the decision.
7.3 Freedom to make unwise decisions
Section 1(4) of the MCA states: "A person is not to be treated as unable to make a decision merely because he makes an unwise decision". It is only if a person is unable to make a decision that he or she can be said to lack the capacity to make it. No one should declare that the person lacks capacity to make a decision just because they believe the decision made by the person is unwise, wrong or even weird.
7.4 Best interests
Section 1(5) of the MCA says that any action or decision taken for a person who lacks the capacity to take the action or decision must be taken in the person’s best interests. This is discussed in more detail at 9 below.
7.5 Least restrictive alternative
Section 1(6) of the MCA says that before an action or decision is taken on behalf of someone, the person taking it should consider whether the action or decision can be taken in a way that interferes less with the person’s rights and freedoms
8. Assessing mental capacity
Before anyone takes an action or a decision under the MCA, they must have a reasonable belief that the person they are helping does lack capacity to take the action or decision. The person intending to take the action or decision must therefore assess the person’s capacity to take that action or decision for him or herself. In doing this, they need to consider what the law says "lacking capacity" means (see 2 above). Where straightforward day to day actions and decisions need to be taken, it may be the person’s friends and family who make an assessment. Where more difficult decisions have to be made, such as giving consent to medical treatment, a more formal assessment of the person’s capacity may have to be undertaken by a professional, for example a doctor.
Whoever assesses the person’s capacity must follow the principles of the MCA set out at 6 above. This means that they must, for example, assume that the person has capacity unless it is established that he or she lacks capacity. They must also take all practical steps to help the person make his or her own decision. The "assessor" must remember that capacity should be considered in relation to specific decisions. The person they are helping may find it difficult to make some decisions but easier to make others. However, if a person has a long term medical problem that affects their capacity – for example, a form of dementia – then a carer may not have to make a new assessment every time they take an action on the person’s behalf – for example, every time they dress the person in the morning. In this situation, it will easy for the carer to show that they had a reasonable belief that the person they are helping lacks the capacity to take this action on his or her own.
9. Deciding what is in a person’s "best interests"
The MCA does not contain a definition of the term "best interests" but section 4 of the Act sets out a checklist of issues that should be considered by anyone taking an action or decision on behalf of someone else. The checklist contains some things that the person taking the action or decision must do. They must:
- consider all the relevant circumstances;
- consider whether and when the person will have capacity to make the decision in the future and whether to put off making the decision immediately (for example, if the person is experiencing severe mental distress, it may be that this distress will ease in the near future so that the person will be able to make their own decisions);
- support the person’s participation in acts done for him and decisions affecting him;
- consider the person’s expressed wishes and feelings, beliefs and values and other factors that the person would be likely to consider;
- take into account the views of carers, people with an interest in the person’s welfare, or those appointed to act for the person.
The checklist also contains some things that the person taking the action or decision must not do. They must not:
- base the best interests decision on unjustified assumptions based on age, appearance, medical condition or behaviour;
- make a decision about life-sustaining treatment "motivated by a desire to bring about his death".
The checklist is non-exhaustive which means that other issues can also be considered.
10. Care and treatment under the MCA
Section 5 of the MCA gives legal protection to people who take actions and decisions in connection with the care or treatment of a person who lacks the mental capacity to deal with their own care or treatment. To be covered by this legal protection, the person taking the action or decision must establish that the other person lacks capacity in relation to the particular care or treatment and that the action or decision is in the person’s best interests.
11. Restraint
Section 6 of the MCA allows a person who lacks capacity to make a particular decision to be physically restrained in order to prevent him or her from being harmed. The restraint must be proportionate to the likelihood of the person suffering harm and also to the seriousness of that harm. Article 5 of the European Convention on Human Rights (the Convention) says that except in very limited circumstances, people cannot be deprived of their liberty. The MCA therefore states that any restraint under section 6 must not amount to a deprivation of liberty as defined by the Convention. A useful example is someone who does not have the mental capacity to be aware of road safety. It would be acceptable for a relative or carer to physically stop the person from walking into the road. However, it would not be acceptable for the relative or carer to keep the person locked in at all times to prevent them going near traffic.
12. Planning ahead (1) - Lasting Powers of Attorney
The MCA introduced Lasting Powers of Attorney (LPA). These allow the person making the LPA (the donor) to give power to someone else (the attorney) to make decisions on the donor’s behalf. The donor decides who the attorney should be and how wide-ranging the power should be. There are two types of LPA – the property and affairs LPA and a personal welfare LPA.
Property and affairs LPA
A property and affairs LPA covers issues such as the management of bank accounts and the buying or selling of a home. It effectively replaces the Enduring Power of Attorney (EPA) that could be made up until the MCA came fully into force on 1 October 2007. The donor can specify that the attorney(s) should only have the power to manage financial affairs after the donor loses capacity, sometime in the future. Otherwise, the attorney can use the LPA as soon as it has been registered with the Office of the Public Guardian (OPG), even if the donor still has capacity.
Personal welfare LPA
Until the MCA came into force people were only allowed to appoint attorneys to make financial decisions. Now people can make personal welfare LPAs that cover issues such as medical treatment, social care and where to live.
The donor of an LPA must be aged 18 or over and must have the mental capacity to make it. The LPA is made using a form that also contains a certificate that must be signed by an independent person to confirm that the donor fully understands what is involved in making the LPA and what having an LPA in place will mean for the donor. The person signing the certificate is also confirming that no fraud or undue pressure has been used to make the donor create the LPA.
It is possible to download a pack form the OPG website that contains the forms and guidance needed to make either a finance and property LPA or a personal welfare LPA at www.publicguardian.gov.uk/forms/forms.htm
For more about LPAs, see Mental Capacity Act 2005 Briefing 2: Financial Decisions under the Mental Capacity Act 2005.
13. Planning ahead (2) - Advance Decisions
An advance decision involves a person stating what types of treatment he or she does not want to be given if they ever lose the capacity to decide on this treatment. They are legally binding and must be followed by doctors and other health professionals, as long as they meet certain conditions. Advance decisions could be made before the MCA came fully into force on 1 October 2007 but the Act introduced rules that must be followed for an advance decision to be valid and applicable. Anyone who had already made an advance decision before the MCA rules came into force should check that it complies with the rules.
An advance decision may be made by a person who is aged 18 years or over and who has capacity to make it. An advance decision must be in writing and witnessed if it applies to "life-sustaining treatment" (treatment which in the view of a person providing health care for the person concerned is necessary to sustain life). There are no formalities for making advance decisions that do not apply to life-sustaining treatment but it is probably better for people to write their decision down on paper. An advance decision is not valid if the person has since withdrawn it, as long as that person had capacity to do so, or if the person has since made an LPA concerning the treatment to which the advance decision relates. An advance decision will also be invalid where the person who made it has since acted in a way that is clearly inconsistent with it. Where it is valid, a decision only comes into effect once the person concerned has lost capacity in relation to the decision(s) in question.
There are two important points to note about advance decisions:
- A person cannot demand a particular treatment in an advance decision; they can only cover the types of treatments they would wish not to be given.
- Advance decisions do not allow people to refuse to be detained ("sectioned") or treated without their consent under the Mental Health Act 1983. This is because as the law stands in England and Wales, people can be treated for "mental disorder" without their consent even if they have the mental capacity to make decisions about the treatment they are being given.
14. New Court of Protection
The MCA created a new Court of Protection to oversee actions taken under the Act and to resolve disputes that involve mental capacity matters. The Court has the same authority as the High Court and appeals can be made against its decisions, with permission, to the Court of Appeal. Section 15 of the MCA gives the Court certain powers, such as the power to make declarations as to whether a person has or lacks capacity to make a particular decision and to rule whether an act that is being proposed in relation to a person is lawful or not. Section 16 gives the Court power to make decisions and appoint deputies to make decisions on a person’s personal welfare as well as on property and affairs. By section 17, the Court’s powers in respect of personal welfare matters extend in particular to:
- decisions on where the person is to live;
- decisions as to what contact (if any) he or she is to have with specified persons;
- giving or refusing consent to medical treatment; and
- directing a change of person with responsibility for the person’s healthcare.
It is the Court which will rule on the validity of LPAs and which will determine the meaning or effect of an LPA.
For more on the Court of Protection, see Mental Capacity Act 2005 Briefing 3: Structures and Safeguards under the Mental Capacity Act 2005.
15. Deputies
The new Court of Protection is able to appoint deputies as substitute decision makers where a person loses capacity and has not completed an LPA. Deputies are able to take decisions on health and welfare as well as financial matters. They are likely to be appointed when an ongoing series of decisions is needed to resolve an issue, rather than a single decision of the Court. In most cases, the deputy will be a family member or someone who knows the person well. However, the court may sometimes appoint a deputy who is independent of the family – cases where the person’s affairs or care needs are very complicated, for example. Deputies have to make decisions in the person’s best interests and allow the person to make any decisions that he or she still has capacity to make – they do not have power to make all of the person’s decisions just because they have been appointed. Deputies are not able to refuse consent to life-sustaining treatment. The provision for deputies replaced and extended the old system of receivership for dealing with property and financial matters. Receivers who were appointed and in place before the MCA came fully into force on 1 October 2007 automatically became deputies from that date.
16. The Public Guardian
When the MCA came fully into force, the old Public Guardianship Office became the Office of the Public Guardian (OPG). The OPG is responsible for:
- registering LPAs and deputies;
- supervising deputies appointed by the Court of Protection;
- providing evidence to the Court of Protection;
- providing information and guidance to the public.
The OPG has a Customer Services Unit that is the first point of contact for anyone seeking advice or information about the MCA (telephone number 0845 330 2900). The OPG website (www.publicguardian.gov.uk) contains a range of information about the Mental Capacity Act, Lasting Powers of Attorney, how to make an application to the Court of Protection and so on.
17. The Independent Mental Capacity Advocate (IMCA)
The MCA provided for the setting up of an Independent Mental Capacity Advocate service – one in England and one in Wales – that employ a special type of advocate called an Independent Mental Capacity Advocate (IMCA). IMCAs support and represent people lacking capacity to make a decision who are, what the Act calls, unbefriended. A person is unbefriended if he or she does not have any friends, family or anyone else to support them other than paid professionals. An IMCA must be appointed to assist an unbefriended person in two specific situations:
- when a decision is being made by the NHS about providing "serious medical treatment";
- when certain changes in the person’s living arrangements are being considered by the agencies supporting the person (The IMCA must be involved where the agencies are thinking about moving the person into a care home for eight weeks or more, moving the person to a different home for eight weeks or more, or moving the person into a hospital for 28 days or more).
The number of situations where an IMCA must be appointed to assist an unbefriended person may be increased over time.
The role of IMCAs is considered in more detail in Mental Capacity Act 2005 Briefing 2: Financial Decisions under the Mental Capacity Act 2005.
18. Ill-treatment or neglect
Section 44 of the MCA creates a new offence of ill-treating or wilfully neglecting a person who lacks capacity. This applies to anyone helping a person who lacks capacity to make his or her own decisions and also to attorneys and deputies. The maximum sentence is up to five years imprisonment and/or a fine.
19. Code of Practice
The MCA is supported by guidance contained in a Code of Practice to the MCA. The Code sets out much more detail about the MCA and gives examples of how the Act applies to particular situations. The Code is not law in the same way as the MCA itself is but certain categories of people are legally required to "have regard to" relevant guidance in the Code, for example attorneys, deputies, IMCAs and anyone acting in a professional capacity for, or in relation to, a person who lacks capacity to make particular decisions. If any of these people have not followed relevant guidance in the Code then they are expected to give good reasons for why they have departed from the Code’s guidance. Friends, relatives and informal carers are not under the same duty but are expected to follow the general principles set out in the Code. In any event, they should find the guidance contained in the Code useful to them.
20. Further information
This legal briefing relates only to the law of England and Wales in force at the time of writing. It is a brief outline of the law and is not a substitute for detailed advice.
For further information about the work of Mind's legal unit, please refer to our information sheet, Introduction to the Legal Unit. This is also available in hard copy (T: 020 8519 2122).
The Office of the Public Guardian (OPG) is the first point of contact for anyone seeking advice or information about the MCA (T: 0845 330 2900). Its website (www.publicguardian.gov.uk) contains a range of information about the Mental Capacity Act, Lasting Powers of Attorney and how to make an application to the Court of Protection.
For more detailed advice on any of the issues discussed in this briefing you should take advice from a solicitor specialising in this area of the law. Details of where to seek specialist advice can be obtained from the Law Society (www.lawsociety.org.uk, T: 0870 606 2555) or from Community Legal Advice (www.communitylegaladvice.org.uk, T: 0845 345 4345). Alternatively, you could contact your local Law Centre or Citizen’s Advice Bureau, who may be able to help.
Keith Dawson
Legal Unit
Mind
Granta House
15-19 Broadway
London E15 4BQ
January 2008
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