Mental Capacity Act 2005
Sometimes people with mental health problems, for various reasons, are unable to make decisions for themselves. The Mental Capacity Act 2005 allows for someone else to make decisions for someone who cannot make their own.
This information comes from the Rethink Advice & Information Service's Mental Capacity Act 2005
What is the Mental Capacity Act?
The Mental Capacity Act 2005 (MCA) provides a framework to protect vulnerable people over the age of 16 who are not able to make their own decisions.
It makes it clear who can make decisions for people who are unable to themselves and in what situations decisions can be made. It also allows people to plan ahead in case of a time where they may lose capacity.
For some people, symptoms during an episode of mental illness, for example delusions, very high or very low mood, may mean they lose their ability to make decisions in a way they would when well.
It also offers legal protection for people who care for those lacking capacity.
Five key principles
The MCA is based on five key principles that must be followed:
- Someone is presumed to have capacity unless it is proved otherwise
- Individuals must be supported to make their own decisions, for example with the help of counselling or medication, and be given all appropriate information before it is decided they do not have capacity
- People have a right to make decisions others may see as eccentric or unwise
- Anything done for someone without capacity must be in their best interests
- Anything done for someone without capacity must be the least restrictive of their basic rights and freedoms
How is mental capacity assessed?
The Act sets out a test for assessing whether a person has the capacity to make a particular decision at a particular time.
It is a ‘decision-specific’ test, concerned only with the decision that has to be made. For example someone may be quite capable of making decisions about some matters like their weekly food shop, but unable to deal with large sums of money or consent to a necessary operation.
The test is in two stages:
It has to be determined whether the person’s ability to make decisions is impaired or disturbed, and;
If so, whether the disturbance is so great that they lack judgment to make the particular decision.
To assess whether someone can make a decision, an assessor must look at whether the person can understand information given to them about the decision, retain that information in their mind, balance or weigh information about options and then communicate their decision. No one can be labelled ‘incapable’ on the basis of a particular diagnosis.
Who assesses capacity depends on the nature of the decision. For day-to-day decisions a carer could assess capacity. But for more complex decisions, such as consent to treatment, a healthcare professional must assess capacity.
The MCA Code of Practice emphasises the importance of reviewing capacity from time to time, especially if a care plan is being prepared or particular decisions need to be made.
How are best interests decided?
Best interests are decided using a checklist of factors and by looking at individual circumstances.
Carers and family members have a right to be consulted about what they think the person would want.
If the person has written down his or her wishes in advance this must be taken into consideration. If a carer objects to the making of a particular decision, they should seek advice.
How does the MCA work in practice?
Lasting Power of Attorney (LPA)
We are all able to appoint someone to make decisions on our behalf in case we lose capacity in the future, by making a Lasting Power of Attorney (LPA).
An LPA allows someone to choose an attorney to make financial, and health & welfare, decisions when they no longer have capacity to make these decisions.
If you are worried about the financial decisions someone you care for is making, see the Looking after someone else's finances wepage.
Court of Protection
The Court of Protection (CoP) protects those who lack capacity in a number of ways. It can determine the validity of, or cancel an LPA.
The Court of Protection can appoint deputies if there is no Lasting Power of Attorny in place. The deputies will usually be relatives or close friends, and it will be their job to make decisions in the person lacking in capacity’s best interests.
The Court of Protection can also be used for particularly difficult decisions and cases where there is doubt about whether the decision is in the person’s best interests.
How becoming someones deputy might help you deal with your finances is explained on our Becoming someone's deputy or being granted power of attorney webpage.
Independent mental capacity advocates (IMCAs)
Independent Mental Capacity Advocates (IMCAs) are people who speak on behalf of someone who has important decisions to make, but has no friends or relatives to speak for them.
The IMCA makes sure the person’s wishes, feelings, beliefs and values are represented, at the same time as bringing to the attention of the decision-maker all factors that are relevant to the decision. The IMCA is also able to challenge the decision-maker on behalf of the person lacking capacity.
For more on IMCA go to the Advocacy page.
Advance decisions
As long as they have capacity at the time a person can make an advance decision to refuse treatment should he or she lose capacity in the future. This decision must normally be followed by doctors.
If someone who has made an advance decision to refuse a form of psychiatric treatment is then detained under the Mental Health Act (MHA), doctors can overrule the advance decision if it is thought necessary for the person’s health. If an advance decision isn’t followed, the reasons for this should be recorded in a person’s notes.
However, electroconvulsive therapy (ECT) cannot be given to detained patients, who do not have capacity to make this decision themselves, if they have made a valid advance decision refusing the treatment (except in an emergency).
Protecting people who lack capcity
Restraint can only be used if the person using it reasonably believes it is necessary to prevent harm to the person lacking capacity and if the restraint is in proportion to the likelihood and seriousness of the harm.
The Mental Capacity Act also protects people from having unnecessary restrictions on their liberty whilst in a hospital or care home by introducing 'deprivation of liberty safeguards' (DoLS). The safeguard procedure means that the hospital or care home managers have to ask for permission in order to restrict someone's lifestyle in a way that might breach their right to liberty. DoLS do not apply to people detained under the Mental Health Act 1983.
The Act introduced a new criminal offence of ill-treatment or wilful neglect of a person who lacks capacity, carrying a potential prison sentence of up to five years.
How does the MCA fit with the Mental Health Act?
The Mental Health Act cannot be used to treat someone for a physical illness (which is unrelated to their mental illness) without their consent. If someone is deemed not to have the capacity to consent to treatment for a physical illness due to the effect of a mental illness, then the Mental Capacity Act could be used to provide treatment for the physical condition.
A person who lacks the capacity to make decisions about medical treatment for a mental illness can be treated without their consent under the Mental Capacity Act 2005. However, if it would be very difficult to treat someone without their consent in the community or if their ability to make decisions for themselves changes regularly, the Mental Health Act should be used.
