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A Guide To The Mental Capacity Act 2005
The MCA 2005 together with its regulations came into force on 1
October 2007.
The Act is principally designed to improve and clarify how
decisions should be made for those persons over 16 who are
otherwise unable to make decisions for themselves.
Who should make the decision?
How and when should they make the decision?
The decision-maker must be guided by the 5 governing principles
(s.1 MCA)
The 5 Governing Principles
1.The Presumption of Capacity
A person must be assumed
to have capacity unless it is established that he lacks
capacity
Establishing a lack of capacity
A person lacks capacity
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
disturbance in the functioning of the mind or brain.”
This involves a two-stage test:
Does the person have an
impairment of or a disturbance in the functioning of the mind or
brain?
- E.g. dementia/long-term brain damage
- Medical question
Does that impairment/disturbance render the person unable to
make a specific decision?
- A person will be unable to make a specific decision if, on the
balance of probabilities, they cannot:
-
- Understand information about the decision to be made;
- Retain that information;
- Use or weigh that information as part of the process of making
the decision; or
- Communicate his decision (s.3 MCA)
Difficulties with communication do not amount to an inability to
communicate.
A person can lack capacity even if the loss of capacity is
partial or temporary or if capacity fluctuates.
2. A person is not to be treated as unable to make a decision
unless all practicable steps to help him do so have been taken
without success
This will involve:
- Providing relevant information
- Communicating it in an appropriate way
- Making the person feel at ease
- Supporting the person
What level of help should be given will depend upon the
individual circumstances and, in particular, the decision to be
made and the length of time to make it.
3. A person is not to be treated as unable to make a decision
merely because he makes an unwise decision
4. Best Interests
An act done or decision
made for or on behalf of a person who lacks capacity must be done,
or made, in his best interests
What should be considered?
Decisions as to best
interests must NOT be based solely on:
- Age
- Appearance
- Condition
- Behaviour
All the relevant circumstances: i.e. circumstances which:
- The person making the decision is aware of; and
- It would be reasonable to regard as relevant (s.4(11)
MCA)
Every effort should be made to encourage and enable the person
lacking capacity to take part in the decision-making process
If there is a chance that the person will regain capacity to
make a particular decision it may be possible to put off the
decision until later
Special considerations apply to life sustaining treatment
- Questions as to what is ‘life sustaining treatment’ are medical
decisions properly left to doctors
- Any decisions relating to life sustaining treatment must not be
motivated by desire to bring about a person’s death – even if out
of compassion
- All reasonable steps which are in the person’s best interests
should be taken to prolong their life
- Doctors are not under an obligation to provide/continue to
provide life sustaining treatment where such treatment is not in
the person’s best interests
- Advance decisions must be followed provided they are:
-
- In writing;
- Signed and witnessed; and
- State clearly that the decision applies even if life is at
risk.
A person’s past and present wishes and feelings, beliefs and
values should be taken into account
-
Applies if such wishes etc. are
‘reasonably ascertainable’ – this will depend on the circumstances
and time available
-
This allows actions to benefit other
people provided that they are in the best interests of the person
who lacks capacity (This is an adaptation of common law approach in
Re Y. In that case a bone marrow transplant for the benefit of Y’s
sister was deemed to be in Y’s best interests because she would
have suffered as a result of the effect her sister’s death on her
mother. The new approach would entitle a decision-maker in those
circumstances to consider that, in light of her relationship with
her family, a person in Y’s position would have wanted to undergo
the procedure).
Views of other people who are close to the person who lacks
capacity should be considered as well as the views of an attorney
or deputy
The decision-maker has a duty to take into account the views
of:
- Anyone the person previously named as someone they wanted
consulted
- Anyone involved in caring for the person
- Anyone interested in their welfare (e.g. family carers or close
relatives)
- An Attorney appointed under an LPA
- A Deputy appointed by the Court of Protection
The decision-maker should try to establish what they these
people believe is in the person’s best interests and ascertain
whether they have any information on their wishes and feelings,
beliefs and values.
NB: Attorneys and deputies must make the decisions in areas they
have been appointed to deal with.
Protection from liability
If someone acts or makes a
decision in the reasonable belief that what they are doing is in
the best interests of the person who lacks capacity, then, provided
they have followed the s.4 checklist, they will have complied with
their duty (s.4(9))
5.Minimising intervention
Before the act is done, or the decision is made, regard must
be had to whether the purpose for which it is needed can be
effectively achieved in a way that is less restrictive of the
person’s rights and freedom of action.
The decision-maker should consider whether there is a need to
act or make a decision at all.
Date:
October 2007
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