The Mental Capacity Act
The Mental Capacity Act applies to people aged 16 or over who are not able to make decisions about their care and treatment.
The Act says that:
- It must be assumed that people have capacity to make a decision unless it is proved otherwise.
- If a person makes an unwise decision, this doesn’t mean a person lacks capacity.
- A person may lack capacity to make some decisions but this doesn’t mean they lack capacity to make all decisions.
- Decision makers for people that lack capacity must make decisions in the person’s best interest.
- Any decisions that are made for someone lacking capacity must be the least restrictive of their rights and Freedom.
Before it can be decided if someone lacks capacity, several things need to be taken into consideration:
- Has the information been presented to the person in a way that they can understand (easy print, different language?
- Does the person have access to all the information they need to enable them to make a decision?
- Have different methods of communication been explored?
- Is there someone that knows the person well that can help with communication?
- Are there certain times of the day that the person is better able to understand information and communicate what they would like?
- Does the decision have to made immediately or can it be delayed until they are able to make a decision?
To determine if someone lacks capacity to make a specific decision, they need to be assessed.
The MCA has a 2 stage test for this.
- Does the person have an impairment of the mind or brain whether through illness or damage caused by alcohol/drugs
- Does the impairment mean they are not able to make a specific decision? Is the Impairment temporary, can the decision wait until a time where they are able to make a decision? Capacity can also fluctuate; someone may not be able to make a decision at one particular point in time but may be able to at another.
The Act states that a person is deemed to lack capacity if:
- The person is unable to understand the information relevant to the decision
- Retain the Information
- Use or weigh up the information as part of the procession making the decision
If the person has been assessed as lacking capacity to make a specific decision, this can not be applied to a different decision. Capacity needs to be assessed for each specific decision.
Once it has been assessed that a person lacks capacity it is essential that the decision maker ( health or social care depending on who is responsible for the individual’s care)consults with the person’s family or friends about the decision. (They do not have to hold Power of Attorney or Deputyship to be consulted).
The family or friends are not the decision makers. They are there to provide a view point about the decision.
Some people may wish to make a written statement about what they would like, wish for, beliefs in relation to their future care. The statements are not legally binding but the statements can help when making decisions for a someone that has lost capacity.
The statements can include any religious beliefs, who they would like to care for them and where and specific preferences.
Advanced Directions are decisions that are made by someone that has capacity at the time about specific medical treatment in the future. The person needs to be aged 18 or over.
If the decision relates to live sustaining treatment it needs to be in writing, signed witnessed and that the decision applies even if the person’s life is at risk.
An Advanced direction must be applicable to the current situation. This allows the decision to be followed by healthcare professionals as it would do if the person had capacity.