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Mental Capacity Act 2005

A brief legal guide to the Mental Capacity Act, including details of where you can go for further information or support.

Introduction

The Mental Capacity Act 2005 (MCA) creates a framework to provide protection for people who cannot make decisions for themselves. It contains provision for assessing whether people have the mental capacity to make decisions, procedures for making decisions on behalf of people who lack mental capacity and safeguards. The underlying philosophy of the MCA is that any decision made, or action taken, on behalf of someone who lacks the capacity to make the decision or act for themselves must be made in their best interests.

The MCA came into force on 1 October 2007. It is supported by a Code of Practice.

This briefing will look at the definition of capacity and the structures and safeguards provided by the MCA.

The MCA Code of Practice

The Code of Practice to the MCA is an official document that places certain legal duties on health and social care professionals. It also offers more general guidance and information to anyone caring for someone who may lack capacity to make a decision. The MCA should be interpreted using the Code of Practice, which gives explanations and examples of the MCA’s provisions.

To whom does the MCA apply?

The MCA applies in England and Wales. It affects anyone whose mental capacity to make decisions is affected by (what the MCA refers to as) "an impairment of, or a disturbance in the functioning of, the mind or brain." In some cases, a 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.

It must be remembered that just because a person has a mental health diagnosis or is detained under the Mental Health Act 1983 does not necessarily mean that they lack capacity to make decisions for themselves. The MCA applies to people with mental health problems only when they experience a mental health problem that affects their ability to make a particular decision. For some people, the ability to make certain decisions is permanently affected as a result of their experience of mental illness. However, many people who experience mental health problems 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.

The MCA principles

The MCA is governed by five core principles. These can be summarised as follows:

  • Presumption of capacity (section 1(2) MCA).Every adult has the right to make their own decisions if they have the capacity to do so. Family carers and healthcare or social care staff must assume that a person has the capacity to make decisions, unless it can be established that the person does not have capacity
  • Maximising decision making capacity (section 1(3) MCA). People should receive support to help them make their own decisions. Before concluding that someone lacks capacity to make a particular decision, it is important to take all possible steps to try to help them reach a decision themselves.
  • Right to make unwise decisions (section 1(4) MCA). People have the right to make decisions that others might think are unwise. A person who makes a decision that others think is unwise should not automatically be labelled as lacking the capacity to make a decision.
  • Best interests (section 1(5) MCA). Any act done for, or any decision made on behalf of, someone who lacks capacity must be in their best interests.
  • Least restrictive option (section 1(6) MCA). Any act done for, or any decision made on behalf of, someone who lacks capacity should be the least restrictive option possible.

What does "lacking capacity" mean?

Section 2 of the MCA states: "…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.

The phrases ‘in relation to a matter’ and ‘at the material time’ indicate that capacity must be assessed on a decision-by-decision basis. Capacity is not a permanent status and so people should not be described as having or lacking capacity. Instead, when considering someone’s mental capacity a health or social care professional should ask, "Is this person, at this particular time, capable of making this particular decision?"

Some people may have fluctuating capacity because their mental health changes from day to day. For example, a person who hears distressing voices may be unable to make a certain decision when the voices are at their most distressing but be 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 a lower level of mental capacity to make decisions about everyday matters, such as what to eat or where to go, than they do when they are deciding whether to buy a new home or get married.

Section 3 of the MCA provides a fuller definition of how to assess whether someone lacks capacity to make a decision. It states 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.

The Code of Practice to the MCA also explains what does not mean that someone lacks capacity. A person must not be assumed to lack capacity because of:

  • Their age
  • Their appearance
  • Any mental health diagnosis they may have
  • Any other disability or medical condition they may have.

How is a person's capacity assessed?

Anyone intending to take an action or make a decision on behalf of someone else must first assess that person’s capacity to take that action or make that decision for him or herself. The MCA requires that the decision-maker must have a reasonable belief that the person they are helping lacks capacity to make the decision in question.

In assessing someone’s capacity two things must be remembered at all times:

  • The principles governing the MCA (see section 4 of this briefing). This means that anyone assessing a person’s capacity must start from the presumption that the person has capacity, must help the person to make a decision, must allow the person to make an unwise decision and, if the person lacks capacity, must take a decision on their behalf that is in the person’s best interests and the least restrictive option possible
  • The definition of lacking capacity in section 2 of the MCA (see 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. It must be remembered that the same principles apply to life-changing decisions as they do to routine decisions.

What happens if a person lacks the capacity to make a particular decision?

The MCA creates formal structures to allow people to plan for what should happen if they ever lose their capacity to make particular decision.

If someone has not made such plans and at some point loses their capacity to make a particular decision, the MCA says that someone else can 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 makes a decision on behalf of a person who lacks capacity, that person should still be involved as much as possible in the decision-making process.

How are best interest decisions made?

Any decision taken on someone else’s behalf must be in that person’s best interests and must restrict the person’s freedom as little as possible. The MCA does not provide a definition of ‘best interests’ but section 4 sets out a checklist of issues that should be considered by anyone taking an action or decision on behalf of someone who lacks capacity.

A person making a decision on behalf of someone else 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.

This is not an exhaustive list: there may be other relevant considerations depending on the situation.

A person making a decision on behalf of someone else 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 Deprivation of Liberty Safeguards

If someone lacks the capacity to make decisions about their care and it is decided that it is in their best interests for them to be deprived of their liberty, the decision-maker must follow an authorisation process before the person can be lawfully deprived of their liberty. A deprivation of liberty that has not been validly authorised will be unlawful. The authorisation process is governed by the Deprivation of Liberty Safeguards, which were introduced by the Mental Health Act 2007.

For more information on the Deprivation of Liberty Safeguards see  Mental Capacity Act: Deprivation of Liberty Safeguards.

Powers and duties of decision makers

Legal protection

Section 5 of the MCA gives legal protection to people who take actions and decisions in connection with the care and treatment of someone who lacks capacity to deal with their own care and treatment. In order to be protected the decision-maker must follow the steps set out in section 8 of this briefing. This means that they must establish that the person lacks the capacity to make the decision and then make the decision in the person’s best interests. However, section 5 of the MCA does not give someone the power to deprive a person who lacks capacity of their liberty (see R (Sessay) v South London and Maudsley NHS Foundation Trust [2011]).

Restraint

Section 6 of the MCA allows a person who lacks the capacity to make a particular decision to be physically restrained in order to prevent him or her from being harmed. An 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. The restraint must be proportionate to the likelihood of the person suffering harm and also to the seriousness of that harm and must not amount to a deprivation of liberty (as defined in Article 5 of the European Convention on Human Rights). However, it would not be acceptable for the relative or carer to keep the person locked in at all times to prevent them from going near traffic.

Ill-treatment and neglect

Section 44 of the MCA creates an 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 deputies and attorneys. If a person is found guilty of ill-treatment or neglect they may face a prison sentence of up to five years and/or a fine.

If a person is ill-treated or neglected it may also amount to a violation of that person’s human rights. Ill-treatment is likely to violate the right to a private life under Article 8 of the European Convention on Human Rights or, if the ill-treatment is extremely serious, the right not to be subjected to inhuman or degrading treatment under Article 3 of the European Convention on Human Rights.

The Court of Protection

The Court of Protection was created by the MCA to oversee actions taken under the Act and resolve any 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.

When making any decision, the Court of Protection must apply all the principles set out in section 1 of the MCA (see above). In particular, it must make a decision in the best interests of the person who lacks capacity to make the specific decision.

Powers of the Court of Protection

The Court of Protection has the power to:

  • Decide whether a person has capacity to make a particular decision for themselves
  • Make declarations, decisions or orders on financial or welfare matters that affect people who lack capacity to make such decisions
  • Appoint deputies to make decisions for people lacking capacity to make those decisions (see below)
  • Decide whether a Lasting Power of Attorney or Enduring Power of Attorney is valid 
  • Remove deputies or attorneys who fail to carry out their duties.
  • Decide on the lawfulness of Deprivation of Liberty Safeguards authorisations and resolve disputes regarding the Deprivation of Liberty Safeguards (see Deprivation of Liberty Safeguards).

There will usually be a fee for applications to the Court of Protection, although in certain circumstances a person will be eligible for a fee exemption.

The enforcement of decisions made by the Court of Protection is supervised by the Office of the Public Guardian.

When should an application to the Court of Protection be made?

An application should be made to the Court of Protection when someone needs to be granted the authority to make decisions in respect of someone’s health, welfare, financial affairs or property. An application to the Court may be necessary for:

  • Decisions that are particularly difficult where the Court can consider if the proposed action is appropriate, give its view about capacity or assess whether something is in a person’s best interests
  • Disagreements that cannot be resolved through any other means, such as using an Independent Mental Capacity Advocate
  • Situations where ongoing decisions will need to be made for an individual lacking capacity to make those decisions
  • Issues relating to the Deprivation of Liberty Safeguards. For more on this see Deprivation of Liberty Safeguards.

Who can make an application to the Court of Protection?

The MCA is quite flexible about who can apply to the Court of Protection. People who might apply to the Court of Protection include family members, healthcare trusts or local authorities.

The person who lacks capacity to make the decision in question should be a party to the proceedings alongside the person who is making the application on their behalf. If they lack the capacity to instruct a solicitor, a litigation friend should be appointed. A litigation friend is someone who will provide legal instructions to the person’s legal representative on their behalf. A litigation friend might be a relative, friend or attorney. If there is no one available to act as a litigation friend, the Official Solicitor will be appointed.

The following people can apply to the Court of Protection without permission:

  • A person who lacks, or is alleged to lack, capacity, or their legal guardian if they are under 18 years old
  • An attorney appointed under a lasting power of attorney or the person who made the lasting power of attorney 
  • A court-appointed deputy acting on behalf of the person concerned
  • A person named in an existing court order, if the matter relates to that court order.

For anyone else making an application, they are likely to need permission from the Court. When considering whether to grant permission the Court must take the following considerations into account:

  • The applicant’s connection to the person who lacks capacity
  • The reasons the application is being made
  • The potential benefits to the person who lacks capacity
  • Whether the benefits to the person who lacks capacity can be achieved in another way.

Public funding

Public funding may be available for Court of Protection proceedings if the eligibility criteria are met. Solicitors specialising in Court of Protection cases will be able to advise on whether public funding will be available in a particular case.

Deputies

The Court of Protection can appoint deputies as substitute decision-makers where a person loses capacity in relation to a particular decision and has not completed a Lasting Power of Attorney. Deputies can make decisions on health, welfare and financial matters. A deputy may be appointed when an ongoing series of decisions needs to be made. In most cases the deputy will be a family member or someone who knows the person well although a spouse does not have the legal right to act a deputy. In cases where a person’s affairs or needs are very complex the Court of Protection might appoint a deputy who is independent of the family.

A person applying to the Court of Protection to be a deputy will need to show why a deputy is necessary and that they have the skills and ability to carry out a deputy’s duties and that they are trustworthy and reliable. The Court of Protection has the power to remove the deputy or to change their powers. Deputies are supervised by the Office of the Public Guardian.

Deputies only have the right to make decisions that the person does not have the capacity to make. Any decision that the deputy does make must be in the person’s best interests, deputies should refer to part 138 of the MCA Code of Practice for more information.

A deputy can claim reasonable expenses and, if the Court directs, can be paid for their services. The person the deputy is acting for will pay the expenses and costs.

Restrictions on deputies’ powers

A deputy has no authority to make decisions or take action in the following circumstances:

  • If they think that the individual has the capacity to make the decision in question
  • If something they do is intended to restrain the individual
  • If their decision goes against that of an attorney acting under a Lasting Power of Attorney 
  • A deputy cannot refuse the provision or continuation of life sustaining treatment.

The Office of the Public Guardian

The Office of the Public Guardian (OPG) supervises the enforcement of decisions made by the Court of Protection, registers lasting powers of attorney and supervises Court appointed deputies. It helps attorneys and deputies carry out their duties and publishes information and guidance about the MCA for families, carers, healthcare professionals and lawyers. This includes forms for making a lasting power of attorney and applying to the Court of Protection. The OPG has responsibility for investigating concerns about the actions of registered attorneys and deputies (or where the Court has authorised an action under a single order), and has an investigations unit with a dedicated phone number.

Anyone seeking advice or information about the MCA can telephone the Office of the Public Guardian directly on 0845 330 2900 or visit www.justice.gov.uk/about/opg.

Independent Mental Capacity Advocates

The MCA provides for an Independent Mental Capacity Advocate (IMCA) service in England and Wales. This service provides independent advocates to support and represent people who do not have the capacity to make a decision. See Advocacy for a more simple explanation of IMCAs.

Who are IMCAs?

IMCAs are people who are approved by the local authority to act on behalf of people who lack capacity. IMCAs must be independent people of integrity and good character with appropriate experience and training. NHS bodies or local authorities must take account of an IMCA’s views when making decisions that affect people who lack capacity.

When must an IMCA be appointed?

An IMCA must be appointed for a person lacking capacity who has no close family member or unpaid carer to support them, if:

  1. An NHS body is proposing to provide, withhold or withdraw serious medical treatment (unless the treatment is urgent, in which case the NHS body does not have to appoint an IMCA)
  2. A local authority or NHS body is deciding on the person’s long-term living arrangements in a hospital or care home. An IMCA must be appointed where the decision concerns moving the person to hospital for more than 28 days or into a care home for more than eight weeks (unless the arrangements are urgent, in which case the NHS body does not have to appoint an IMCA).

An IMCA must also be appointed in some cases where the Deprivation of Liberty Safeguards are used under Schedule A1 (standard and urgent authorisations) and the person concerned has no close family member or unpaid carer to be consulted. For more detail on this see the Deprivation of Liberty Safeguards.

An IMCA will not be appointed where:

  • A person has nominated someone to be consulted about matters that affect them or has a close family member or an unpaid carer who can support them in the decision making process
  • Where a person has made a lasting power of attorney or enduring power of attorney to deal with such decisions 
  • Where the Court of Protection has appointed a deputy to deal with such decisions (see above).

When may an IMCA be appointed?

An IMCA may be appointed for a person lacking capacity who has no close family member or unpaid carer to support them, if:

  1. An NHS body or local authority is reviewing or planning to review the person’s accommodation
  2. If it would be of particular benefit to a person without capacity when there is an allegation that they have been abused.

An IMCA will not be appointed where:

  • A person has nominated someone to be consulted about matters that affect them or has a close family member or an unpaid carer who can support them in the decision making process
  • Where a person has made a lasting power of attorney or enduring power of attorney to deal with such decisions 
  • Where the Court of Protection has appointed a deputy to deal with such decisions (see above).

What does an IMCA do?

An IMCA has the right to visit and privately consult with the person who lacks capacity.

When an IMCA is appointed to represent someone who does not have capacity they should:

  • Interview the person who lacks capacity
  • Examine the person’s records (for a list of the records that IMCAs have access to see section 35(6) MCA 2005)
  • Gather relevant information about the decision that needs to be made
  • Where appropriate, consult with the professionals providing care and treatment to the person
  • Where appropriate, consult with others who may be able to comment on the person’s wishes, feelings, beliefs and values.

Once the IMCA has all of this information, he or she should:

  • Ascertain the support that the person lacking capacity needs to participate in the decision
  • Identify what the person’s wishes, feelings, beliefs and values would be likely to be if he or she had capacity to make the decision
  • Identify what other courses of action are available
  • If the decision relates to medical treatment, give an opinion as to whether the person would benefit from a further medical opinion
  • Take into account the MCA Code of Practice, ensuring that the guiding principles are followed, that the least restrictive options have been considered and that the best interests checklist has been complied with.

An IMCA must then prepare a report including his or her conclusions on all of these matters, giving an opinion on how the relevant decision should be made in the person’s best interests.

If there continues to be disagreement amongst professionals as to what is in the person’s best interests or if an IMCA believes that his or her opinion has not been taken account of, the IMCA may make a complaint to the NHS body or local authority or refer the issue to the Court of Protection.

What is the difference between an IMHA and an IMCA?

An Independent Mental Health Advocate (IMHA) may be appointed to represent people who have a mental disorder under the Mental Health Act 1983 (MHA 1983) and fall under certain sections of the MHA 1983. In Wales, all patients under the MHA 1983, including informal patients, have a right to an IMHA.

An IMCA may be appointed for people who lack capacity under the MCA 2005.

Relationship between the Mental Health Act 1983 and the Mental Capacity Act 2005

The Mental Health Act 1983 (MHA 1983) is a separate legal regime from the MCA 2005. The MHA 1983 applies to people who have a mental disorder, such as schizophrenia. The MCA 2005 applies to people who do not have capacity. If a person is detained under the MHA 1983 for treatment or assessment, decisions must be made in accordance with the MHA 1986 and not in accordance with the best interests provisions under the MCA 2005. Similarly a person who lacks capacity cannot be detained under the MHA 1983 unless they meet the MHA 1983 criteria. The only way that a person who lacks capacity can be detained is by following the procedure under the Deprivation of Liberty Safeguards (see the Mind Legal Briefing Deprivation of Liberty Safeguards).

Further information

This legal briefing attempts to provide an overview of the key concepts and provisions in the MCA 2005. It is not a substitute for advice in any particular case.

See further information about the work of Mind’s Legal Unit.

For general advice about mental capacity please contact the Mind Legal Advice Service on 0300 466 6463 or legal@mind.org.uk.

For more detailed advice on any of the issues discussed in this briefing, please consult a solicitor specialising in mental capacity law and the Court of Protection.

More specialist advice can be obtained from the following organisations:

1. The Law Society
0870 606 2555

2. Civil Legal Advice
0845 345 4345

3. The Office of the Public Guardian
0845 330 2900

4. The Mental Health Lawyers Association
Has a find a lawyer service

5. The Ministry of Justice
Provides a Guide for families, friends and carers of people who may lack capacity
and a Booklets on various aspects of the MCA, including IMCAs

 

Published by Mind Legal Unit
August 2012

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