Mental Capacity Act and Its Impact

Anu VarshneySouth East DriveAbility

MCA-2005

MCA 2005

• Developed to bring together and integrate existing law

• Puts the needs and wishes of a person who lacks capacity at the centre of any decision-making process

Mental Capacity

• Mental Capacity Act 2005• Replaces section 7 of the 1983 Mental Health

Act and the 1985 Enduring Power of Attorney Act

• Enshrines in Law current best practice and common law principles concerning people who lack capacity and those who make decisions on their behalf

Mental Capacity Act 2005

• Applies to England and Wales

• Consolidates and builds on existing common law

• Significantly amended by the Mental Heath Act 2007

• Comes with a Code of Practice (actually two now!) and a lot of training material

Which staff will be affected by the MCA?

• People working in a professional capacity, e.g. doctors, nurses, dentists and social workers

• People who are paid to care or support, e.g. home care workers and care assistants

• Anyone who is a deputy appointed by the Court of Protection

• Anyone acting as an independent mental capacity advocate (IMCA)

• Anyone carrying out research involving people who may lack capacity

Many people with the following:

– dementia

– learning disability (especially severe learning disability)

– brain injury

– severe mental illness

– anyone planning for the future

– temporary loss of capacity, for example because somebody is unconscious because of an accident or anaesthesia or because of alcohol or drugs

Who will be affected

Mental Capacity Act2005

Principle 1The presumption of capacity• every adult has the right to

make his/her own decision and must be assumed to have capacity to do so unless it is proven otherwise

Presumption of Capacity• Fundamental principle in

common law• Balancing self-determination

with protection• A person has capacity unless

it is proven• otherwise• The need for help or support

does not mean the• person lacks capacity

Principle 2

Rights for Individuals• The right for individuals to

be supported• to make their own decisions• people must be given all

appropriate help before• anyone concludes that they

cannot make their own• decisions

Maximising CapacityEverything possible or practicable must be

done to assist with a decision• eg pictures, photos, videos, tapes, sign

language• Could involve blinking or squeezing a

hand• Involve others who can communicate or

put service user at ease Does the decision need to be made now?• If the person might regain capacity• Fluctuating capacityBe careful of undue influence and persuasion

Principle 3

Rights to make decisions• Individuals must retain the

right to make• what might be seen as

eccentric or• unwise decisions

Eccentric or Unwise Decisions• The right to autonomy• Own values, beliefs,

preferences and attitude to risk

Repeated acts that place a person at a high degree of risk may indicate a capacity issue

• Defying all notions of rationality

• Markedly “out of character”• Suggestible, susceptible to

undue influence

Principle 4

Best interests• Anything done for or on

behalf of people• without capacity must be in

their best interests

Best InterestsWell established common-law

principle• Whose best interests?• Can we compromise? Needs an objective methodology• Cannot simply try to “put

ourselves in the person’s shoes” Need to use Person Centred

Approaches• Listen to others but the decision

maker makes the• decision

Best interests(Mental Capacity Act, Section 4; Code of Practice, 5.1–5.69)

• Any decision or act must be in a person’s best interests

• When making decisions, staff should take account of the following:

– equal consideration and non-discrimination

– considering all relevant circumstances

– regaining capacity

– permitting and encouraging participation

– special considerations for life-sustaining treatment

– the person’s wishes, feelings, beliefs and values

– the views of other people

Principle 5

Least restrictive alternative• Anything done for or on

behalf of people without capacity should be the least restrictive of their basic rights and freedoms

Least Restrictive Alternative• Can we intervene in a way

that will interfere less with the person’s rights and freedoms

• Be careful of institutional practice

• Explore alternativesAn option which is not the

least restrictive may be chosen if it is in the person’s best interest

Capacity Assessment

• Must be able to understand information presented to them

• Must be able to retain long enough to make a judgement

• Must be able to express judgement free from influence

• “Decision specific”• Capacity may vary over time

How is capacity assessed?

Factors to be considered include:

• general intellectual ability

• memory

• attention and concentration

• reasoning

• verbal comprehension and expression

• cultural influences

• social context

How to assess capacity(Code of Practice, 4.11–4.13)

• The two-stage test of capacity:

– Is there an impairment of, or disturbance in, the

functioning of the person’s mind or brain?

– If so, is the impairment or disturbance sufficient to cause the person to be unable to make that particular decision

at the relevant time?

• Staff should always keep records of any assessment

What kind of help could someone need to make a decision?

• Provide all relevant information

• Don’t give more detail than required

• Include information on the consequences of making, or not making, the decision

• Provide information on options

• Consult with family and care staff on the best way to communicate

• Be aware of any cultural, ethnic or religious factors that may have a bearing

• Make the person feel at ease

• Try to choose the best time of day for the person

• Try to ensure that the effects of any medication or treatment are considered

• Take it easy – one decision at a time

• Don’t rush

• Be prepared to try more than once

What kind of records will staff need?

(Code of Practice, 4.60–4.62)

• Day-to-day – record and review, but elaborate records not required on every occasion about decisions/acts of care

• Professional records – record assessments of capacity

• Formal reports as required

Full Impact of this Act

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Useful addresses/resources

• www.nice.org.uk/Guidance/CG42• www.publicguardian.gov.uk/mca/mca.htm• www.dh.gov.uk/en/

Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_094058

• www.patient.co.uk/showdoc/40000281