7.1 Mental Capacity

1. Definition

The Mental Capacity Act 2005 (MCA 2005) provides a framework to protect and restore power to those who may lack, or have reduced, mental capacity to make certain decisions at particular times. It places the adult at the centre of the decision making process.

Whenever the term ‘a person who lacks capacity’ is used, it means a person who lacks mental capacity to make a particular decision or take a particular action for themselves at the time the decision or action needs to be taken.

This reflects the fact that people may not have the mental capacity to make some decisions for themselves, but will have mental capacity to make other decisions. For example, they may have mental capacity to make small decisions about everyday issues such as what to wear or what to eat, but lack mental capacity to make more complex decisions about financial matters.

It also reflects that a person who does not have mental capacity to make a decision for themselves at a certain time may then be able to make that decision at a later date. This may be because they have an illness or condition that means their mental capacity changes. Alternatively, it may be because at the time the decision needs to be made, they are unconscious or barely conscious whether due to an accident or being under anaesthetic or their ability to make a decision may be affected by the influence of alcohol or drugs.

Finally, it reflects that while some people may always lack capacity to make some types of decisions – for example, due to a condition or severe learning disability that has affected them from birth – others may learn new skills that enable them to gain capacity and make decisions for themselves’ (Mental Capacity Act Code of Practice: p3).

The MCA legislates in relation to:

• ensuring adults continue to make as many decisions as they can for themselves;
• enabling adults to make advance decisions about whether they would like to refuse future medical treatment;
• allowing adults to appoint, in advance of losing mental capacity, another person to make decisions about personal welfare or property on their behalf at a future date;
• allowing decisions concerning personal welfare or property and affairs to be made in the best interests of adults when they have not made any future plans and cannot make a decision at the time;
• ensuring an NHS body or local authority will appoint an independent mental capacity advocate to support someone who cannot make a decision about serious medical treatment, or about hospital, care home or residential accommodation, when there are no family or friends to be consulted (see the chapter on Independent Mental Capacity Advocacy Service);
• providing protection against legal liability for carers who have honestly and reasonably sought to act in the person’s best interests;
• providing clarity and safeguards around research in relation to those who lack capacity.

The majority of the MCA relates to people over the age of 16 years old. However, the policies and procedures in this site relate only to adults over 18 years.

2. Principles of the Mental Capacity Act

Under the Mental Capacity Act, the following five principles apply:

• it must be assumed that a person has mental capacity to make a decision unless an assessment shows that they do not;
• a person should not be treated as unable to make a decision unless all practicable steps to help them do so have been taken without success;
• a person should not be treated as unable to make a decision just because they make a decision which seems to others to be unwise;
• an act carried out or decision made for a person who does not have mental capacity, must be in their best interests;
• before an act is carried out or a decision is made, consideration should be given as to whether the intended outcome can be achieved in a way which is less restrictive of the person’s rights or freedoms.

These five principles should inform all actions when working with a person who may lack or have reduced mental capacity and should be evidenced when making decisions or agreeing actions on their behalf.

3. Assessing Mental Capacity

As noted in Section 2, Principles of the Mental Capacity Act, it must be assumed that an adult has the mental capacity to make their own decisions unless it is established that they lack the capacity to do so. This means that anybody who claims an adult lacks mental capacity should be able to provide evidence in support of this

They need to demonstrate, on the balance of probabilities (which means, from the evidence presented, it is more likely than not), the adult lacks mental capacity to make a particular decision, at the time it needs to be made.

To help assess if a person lacks mental capacity, the MCA sets out a two stage test:

Stage 1: The Functional Test – can the adult make the decision in question?

This involves looking at whether the adult is able to make the required decision.

The person must first be given all practical and appropriate support to help them make the decision for themselves. Stage 1 can only apply if all practical and appropriate support to help the person make the decision has failed.

A person is considered unable to make a decision if they cannot:

1. understand information about the decision to be made (known as the ‘relevant information’);
2. retain or keep that information in their mind;
3. use or weigh up that information as part of the decision making process; or
4. communicate their decision (by talking, using sign language or any other means).

There only needs to be evidence that the person is unable to do one or more of these aspects, not all of them.

If the adult cannot make the decision in question – even with support – Stage 2 must then be considered.

Stage 2: The Diagnostic Test – is the person unable to make the decision because of an impairment or a disturbance in the functioning of their mind or brain?

The next step looks at whether the person has an impairment or disturbance of the mind or brain. Examples include, but are not limited to:

• conditions associated with some types of mental illness
• dementia
• significant learning disabilities
• the long-term effects of brain damage
• physical or medical conditions that cause confusion, drowsiness or loss of consciousness
• delirium
• concussion following a head injury, and
• symptoms of alcohol or drug use.

If a person does not have such an impairment or disturbance of the mind or brain, they will not lack capacity under the MCA. It is important to consider if their inability to make the decision is due to other factors such as a lack of information or because of coercion.

If the person is unable to make a decision and an impairment or disturbance in the functioning of the mind or brain has been identified, it is important to determine the link between the two. This is known as the ‘causative nexus’ (see PC and NC v City of York Council [2013] EWCA Civ 478). Only where it can be reasonably said that the adult cannot make the decision because of the impairment of their mind, can it be said that they lack mental capacity to make the decision.

4. Safeguarding and Mental Capacity

During a safeguarding enquiry, crucial decisions will have to be made at different stages of the process. It is therefore vital that capacity to make those decisions is considered and, where an adult does not have mental capacity, decisions made or action taken on their behalf are in their best interests.

An assessment of an adult’s mental capacity to make the required decision(s) should be considered if there is reasonable doubt and in all safeguarding cases where:

• there is a formal diagnosis of cognitive impairment;
• a neuro-psychological assessment testing suggests they have cognitive impairment;
• there are concerns about the person’s capacity that have been raised by others;
• there are discrepancies in the person’s own evaluation of their abilities;
• there is collateral evidence suggesting a change in their personality;
• they fail to learn from their mistakes;
• they repeatedly make risky or unwise decisions.

5. Recording

The two stage test should be used as a framework for recording the outcome of the assessment of mental capacity so that evidence for decision making is clear.

Recording needs to be clear and, where possible, extracts taken from conversations practitioners have had with the adult, to evidence the outcome.

6. Making Decisions on behalf of an Adult who does not have Mental Capacity

If, having taken all practical steps to support the adult to make their own decision, it is concluded that they lack capacity, any decision made for them must be made in their best interests. It must also be considered whether there is another way of making the decision which might not affect the person’s rights and freedom of action as much (known as the ‘least restrictive alternative’ principle).

See also Promoting Less Restrictive Practice: Reducing Restrictions Tool for Practitioners (ADASS and LGA).

6.1 Decision Makers

Different people can make decisions or act on behalf of someone who lacks mental capacity. The person making the decision is known as the ‘decision maker’, and it is their responsibility to determine what would be in the best interests of the person who lacks capacity, taking into account all the relevant circumstances.

For most day to day actions or decisions, the decision maker will be the carer most directly involved with the person at the time.

Where the decision involves the provision of medical treatment, the doctor or other member of healthcare staff responsible for carrying out the particular treatment or procedure is the decision maker.

Where nursing or paid care is provided, the nurse or paid carer will be the decision maker.

In safeguarding cases, the decision maker will be the person undertaking the enquiry for decisions relating to the safeguarding process and the provision of care and support.

In some cases, the same person may make different types of decision for someone who lacks capacity. For example, a carer may carry out certain acts in caring for the person on a daily basis, but if they are also an attorney, appointed under a lasting power of attorney, they may also make specific decisions concerning the person’s property and financial affairs or health and welfare.

A decision may also, at times, be made jointly by a number of people. For example, when a care plan for a person who lacks capacity is being developed, different healthcare or social care staff might be involved in making decisions or recommendations about their care package. Alternatively, the decision may be made by one practitioner within the team. A different member of the team may then implement that decision, based on what the team has ascertained to be the person’s best interests.

Practitioners need to ensure that the person is involved or that hat someone is representing them, such as an independent mental capacity advocate (IMCA) or a relevant person’s representative (RPR).

All best interests decisions under the MCA should be made by consensus. If the parties cannot agree then steps should be taken to resolve the disagreement, e.g. re-assessing the person’s needs.  If agreement cannot be reached then any public bodies involved will need to consider whether to apply to the Court of Protection for a decision to be reached.

6.2 Lasting power of attorney, court appointed deputy and the Office of the Public Guardian

A lasting power of attorney (LPA) allows an adult to appoint an attorney to act on their behalf if they should lose mental capacity in the future. LPAs are registered with the Office of the Public Guardian (OPG).

A court appointed deputy is appointed by the Court of Protection. Depending on the terms of their appointment, deputies can take decisions on welfare, healthcare and financial matters as authorised by the Court of Protection but they are not able to refuse consent to life sustaining treatment. Deputies are only appointed if the Court cannot make a one off decision to resolve the issues. The OPG supervises deputies appointed by the Court and provides information to help the Court make decisions.

Attorneys and deputies are not legal representatives. They can be a member of the person’s family or a friend; it does not have to be a legal professional.

6.3 Independent Mental Capacity Advocates

See also the chapter on Independent Mental Capacity Advocacy Service.

Independent mental capacity advocates (IMCAs) are appointed in specific circumstances to support a person who lacks mental capacity and who has no one to support them. They must be involved where decisions are being made about serious medical treatment or a change in the adult’s long-term accommodation where it is provided, or arranged, by the NHS or a local authority. The IMCA makes representations about the person’s wishes, feelings, beliefs and values, and brings to the attention of the decision maker all relevant factors to the case.

6.4 Forward Planning

Considering the possibility of losing mental capacity and registering a lasting power of attorney is usually associated with people getting older. But it is wise to consider such decisions and act on them much earlier in life, in case of unexpected illness or an accident that results in a temporary or permanent loss of mental capacity.

Using an LPA for property and financial affairs is not limited to circumstances where an adult’s capacity is diminished. Due to a physical illness that renders a person (the donor) unable to leave the house for example, an LPA who is registered in relation to property and financial affairs can carry out financial transactions on their behalf and with their permission. In the absence of a registered LPA the alternative would be to borrow the money which could attract charges, or to apply to the Court of Protection.

LPAs for health and welfare can only be used once the person has lost capacity to make the decisions covered in the LPA.

Although an LPA cannot be used until it has been fully registered with the OPG and confirmation received, they can be registered before the adult loses mental capacity which means that they can be used immediately if becomes necessary.

7. Best Interests

See also Best Interests chapter

The Mental Capacity Act sets out a checklist of things to consider when deciding what’s in a person’s best interests.

When making best interests decisions, practitioners should:

• not make assumptions about an adult based on their age, appearance, condition or behaviour;
• consider all the relevant circumstances;
• consider whether or when the adult will have the mental capacity to make the decision;
• support the adult’s participation in any acts or decisions made for them;
• not make decision about life sustaining treatment ‘motivated by a desire to bring about his (or her) death’;
• consider the adult’s expressed wishes and feelings, beliefs and values;
• take into account the views of others with an interest in the adult’s welfare, their carers and those appointed to act on their behalf.

8. Excluded Decisions

There are certain decisions which can never be made on behalf of a person who lacks mental capacity to make those specific decisions. This is because they are either so personal to the individual concerned, or they are governed by other legislation.

8.1 Decisions concerning family relationships

Decisions cannot to be made on someone else’s behalf in relation to:

• consenting to marriage or a civil partnership;
• consenting to have sexual relations;
• consenting to a decree of divorce on the basis of two years’ separation;
• consenting to the dissolution of a civil partnership;
• consenting to a child being placed for adoption or the making of an adoption order;
• discharging parental responsibility for a child in matters not relating to the child’s property; or
• giving consent under the Human Fertilisation and Embryology Act 1990;
• decisions around contact with others, including restricting the use of social media, telephone calls and who can visit the adult.

All these types of decisions should be referred to the Court of Protection if the person is believed to lack mental capacity to make these decisions themselves.

8.2 Mental Health Act matters

Where a person who lacks capacity to consent is currently detained and being treated under the Mental Health Act 1983, the MCA does not authorise anyone to:

• give them treatment for mental disorder; or
• consent to them being given treatment for mental disorder.

8.3 Voting rights

Nothing allows a decision on voting – at an election for any public office or at a referendum – to be made on behalf of a person who lacks capacity to vote. Everyone has the right to vote, irrespective of their mental capacity to make other decisions.

8.4 Unlawful killing or assisting suicide

The MCA does not change the law relating to murder, manslaughter or assisting suicide.