The Mental Capacity Act (MCA) has been in force since 2007 and applies to England and Wales. The purpose of the MCA is to promote and safeguard decision-making within a legal framework. It does this in two ways:
- By empowering people to make decisions for themselves wherever possible, and by protecting people who lack capacity by providing a flexible framework that places individuals at the heart of the decision-making process
- By allowing people to plan ahead for a time in the future when they might lack the capacity.
A person may lack capacity to make some decisions for themselves, but will have capacity to make other decisions. A persons capacity, or lack of capacity, refers specifically to their capacity to make a particular decision at the time it needs to be made.
Key Points
- The Mental Capacity Act (MCA) 2005 applies to everyone involved in the care, treatment and support of people aged 16 and over living in England and Wales who are unable to make all or some decisions for themselves.
- The MCA is designed to protect and restore power to those vulnerable people who lack capacity.
- The MCA also supports those who have capacity and choose to plan for their future – this is everyone in the general population who is over the age of 18.
- All professionals have a duty to comply with the Code of Practice. It also provides support and guidance for less formal carers.
- The Act’s five statutory principles are the benchmark and must underpin all acts carried out and decisions taken in relation to the Act.
- Anyone caring for or supporting a person who may lack capacity could be involved in assessing capacity.
- The MCA is designed to empower those in health and social care to assess capacity themselves, rather than rely on expert testing – good professional training is key
- Understanding and using the MCA supports practice – for example, application of the Deprivation of Liberty Safeguards
About two million people in England and Wales are thought to lack capacity to make decisions for themselves. They are cared for by around six million people, including a broad range of health and social care staff, plus unpaid carers. Those working in health and social care include: doctors, nurses, dentists, psychologists, occupational therapy, speech and language therapists, social workers, residential and care home managers, care staff (including domiciliary care workers), and support workers (including people who work in supported housing).
Someone’s Mental Capacity, or ability to make a certain decision, may be impacted by:
- a stroke or brain injury
- a mental health problem
- dementia
- a learning disability
- confusion, drowsiness or unconsciousness because of an illness of the treatment for it
- substance misuse.
Five Key Principles
The Act is underpinned by five key principles, which can be considered chronologically: principles 1 to 3 will support the process before or at the point of determining whether someone lacks capacity. Principles 4 and 5 support the decision-making process.
The five statutory principles are:
1. A person must be assumed to have capacity unless it is established that they lack capacity.
2. A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
3. A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
4. An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.
5. 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 as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.
Deprivation of Liberty Safeguards
The Deprivation of Liberty Safeguards were an amendment to the MCA (2005). The MCA allows some restraint and restrictions to be used, but only if they are in a persons best interests and necessary and proportionate. Extra safeguards are needed if the restrictions and restraint used will deprive a person of their liberty. These are the Deprivation of Liberty safeguards, which can only be used if the person will be deprived of their liberty in a care home of hospital and those settings must request authorisation from the local authority. In other settings, the Court of Protection can authorise a deprivation of liberty.
You can learn more about the MCA in the BCSSP Mental Capacity Act Multi-agency Policy Statement