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Mental Capacity Act

The Mental Capacity Act 2005 is an important law that impacts individuals with learning disabilities, or limited mental capacity in any context, over the age of 16. If you no longer have the mental capacity to make decisions for yourself for any reason, then the Mental Capacity Act 2005 will affect you. Here’s everything you need to know about the Mental Capacity Act, why it was introduced, and its main principles:

What is the Mental Capacity Act?

Every adult has the right to make their own decisions wherever this is possible. However, if an adult does not have the mental capacity to make legal decisions independently then the Mental Capacity Act 2005 enables the people supporting them to make a ‘best interests’ decision for them.

If you are concerned that you will lose the capacity to make decisions for yourself in the future, as a result of a mental health problem, illness, or other external reason (such as an injury or medication use, for example) then the Mental Capacity Act 2005 outlines:

  • What you can put in place now to plan ahead for a time when your mental capacity is reduced
  • Who you would like to make decisions for you, if a decision needs to be made that you haven’t already planned ahead for

How you can ask someone else to make decisions for you, and what decisions others may be able to make on your behalf.

It is important to have a clear definition of what mental capacity actually means. Your mental capacity is your ability to make informed decisions about your own health and well-being. In order to be considered to have the mental capacity to make a decision, you should be able to demonstrate an understanding of the situation, the options available, and the consequences of the decision. Often people with reduced mental capacity can make these decisions when they are given time and support from a caregiver, family member, or mental healthcare professional. But if a person cannot make a decision for themselves then they are considered to have a reduced mental capacity, and the legislation outlined in the Mental Capacity Act 2005 will apply.

Defining mental capacity, and the way in which mental capacity is assessed is important because this will give a clearer indication of the support that someone who is lacking in capacity might need. The Mental Capacity Act Code of Practice clearly states that an individual should not be presumed to lack capacity because of their:

  • Age
  • Appearance
  • Any mental health diagnosis
  • Any disabilities
  • Any medical condition diagnosis

None of these factors in isolation can lead to an individual being deemed to have reduced mental capacity, with the decision as to whether the Mental Capacity Act 2005 should apply being made on a case-by-case basis. There are many reasons you might be deemed to have a reduced mental capacity. These include, but are not limited to;

  • a stroke or brain injury
  • a mental health problem
  • dementia
  • a learning disability
  • confusion, drowsiness or unconsciousness because of an illness or the treatment for it
  • substance misuse

Some of these are lifelong conditions which will leave the individual with permanently reduced capacity, whilst others are conditions which may require rehabilitation over time.

The Mental Capacity Act 2005 differs from the Mental Health Act 1983, though the two acts are often mentioned in conjunction. The Mental Capacity Act 2005 applies if you don’t have the mental capacity to make decisions for yourself as a result of mental health problems, whilst the Mental Health Act 1983 sets out what your rights are if you need to be sectioned as a result of your mental health problems: this generally applies if you need to be administered treatment to control mental health problems, and these medications need to be administered whether or not you a) agree or b) have the mental capacity to agree.

Why was the Mental Capacity Act Introduced?

The Mental Capacity Act 2005 didn’t actually come into force until 2007, and its main aim was to protect and restore power to those vulnerable people who lacked the capacity to make certain decisions for themselves.

The Mental Capacity Act was introduced to offer support to the huge spectrum of the UK population that needed it most. About two million people in England and Wales are thought to lack the capacity to make decisions for themselves. They are cared for by around six million people, meaning that the legislation offered via the Mental Capacity Act is incredibly significant to a large proportion of the population.

The Mental Capacity Act 2005 is an incredibly important one. It is important because it makes it clear who can take decisions, in which situations, and how they should go about this if someone they care for, or a family member, is deemed to have limited mental capacity It also empowers people who fear they may lose mental capacity (for example, someone newly diagnosed with dementia) by enabling them to plan ahead, to express their wishes, and to decide who their wish to be responsible for making decisions on their behalf.

If you work in social care, health and other sectors that are involved in the support and treatment of people aged 16 with mental health conditions or who are otherwise limited in their abilities to make their own decisions then it is important that you understand the Mental Capacity Act 2005 and how it might apply to your work.

How Many Principles Does the Mental Capacity Act Have?

There are five key principles that make up the Mental Capacity Act 2005. These principles focus on ensuring that the best interests of the person with learning difficulties or restricted mental capacity are always at the forefront of every decision made on their behalf.

The Five Main Principles of the Mental Capacity Act

The five main principles are:

  1. Always assume that a person is able to make a decision until you have definitive proof that they are not. Just because a person may be unable to make a decision about one issue doesn’t mean that all of their decision-making rights should be taken away. Rather, decisions should be looked at on a case-by-case basis.
  2. Wherever possible try to support the person in question to make their decisions for themselves, working within their limitations and explaining things in simple terms that they may be more likely to understand.
  3. Just because someone is making a decision that you wouldn’t make doesn’t mean that their decision is wrong or unwise. It would be wrong to assume that because an individual has a limited mental capacity, this has had a negative impact on their decision-making.
  4. If an individual is deemed unable to make a decision for themselves, then a caregiver is able to make a decision on their behalf. In these circumstances, the decision should always be in the best interests of the person in question. Their needs and care should always be the primary concern.
  5. Finally, if you are making decisions about the treatment or care of an individual who lacks the capacity to make these decisions for themselves, then the path that you choose should wherever possible, be the one that is the least restrictive of their fundamental rights and freedoms.

No one can have their decision-making capacity removed on a permanent basis; where possible this is something that should be looked at on a decision-by-decision basis. If someone is deemed not to have the capacity to make decisions right now, this should be subject to regular reviews, so that decision-making abilities are restored in the future, if adequate support is provided.

Healthcare professionals

How is Mental Capacity Assessed?

The mental capacity of an individual should be assessed on a regular basis to determine whether they are able/unable to make a decision at that particular time, or whether their brain has been too badly impaired by their illness or disability. These assessments should be regular and specific to each new decision, as some conditions are not permanent, and mental capacity can be regained. The most common test introduced to assess capacity is known as the two-stage functional test of capacity. This is a test that asked two clear questions;

  • Question One. Is the individual’s mind or brain being impaired in its functioning by an illness or disturbance of some kind?
  • Question Two. If the answer to question one is yes, is that disturbance significant enough that the individual in question lacks the capacity to make the decision they are being asked to make?

If a person is unable to do one of the items on the following list of four items then, according to Mental Capacity Act guidelines, they are unable to make their own decisions. The four things on this very broad list are:

  • The individual must be able to understand the information given to them
  • The individual should be able to demonstrate that they can retain that information long enough to be able to make the decision
  • The individual should have the mental capacity to weigh up the information available to make the decision
  • Finally, the individual should be able to clearly communicate their decision – any communication method can be used for this, whether written, verbal or non-verbal

Best Interests

The best interests of the individual with limited mental capacity should always be the primary concern of the individual or organisation charged with making decisions on their behalf. Occasionally, this can involve the Deprivation of Liberty for their own protection, something that is often used in the case of Alzheimer’s or other degenerative memory illnesses. There were an estimated 256,610 applications for Deprivation of Liberty Safeguards (DoLS) under the Mental Health Act 2005 received during 2020-21.

Often a person is simply not able to make decisions for themselves. In these circumstances, health care professionals must make ‘best interests’ decisions on their behalf. When assessing the best interests of the individual in question, health care professionals will utilise the Best Interest Checklist which is included in Section 4 of the Mental Health Act 2005. Health care professionals must ensure that they:

  • Consider the wishes and feelings of the individual. This should include their current decision-making processes as well as any wishes that they expressed prior to losing their decision-making capacity. It is particularly useful if these prior decision-making wishes are written down. In the absence of this, the beliefs and values that the individual has always adhered to should be taken into account.
  • Healthcare professionals should make a holistic decision that includes taking into account all relevant circumstances. This includes, but is not limited to, any current mental and physical conditions that the person is experiencing and the impact these may have on the decision. The age of the individual. Whether they would normally make this decision for themselves, and whether their mental capacity is likely to be recovered in the near future. Finally, who is caring for the individual and how they will be impacted by the decision should be taken into account.
  • If the individual may regain their decision-making abilities in the near future, does the decision have to be made now? If the decision-making can be put off until the individual is able to be involved in the process, then this should always be considered.
  • What are the views of the individuals’ carers, family, and friends? If they have an interest in their wellbeing, or you have appointed them to act for you prior to losing your mental capacity then their input should always be considered before any new decision is made.
  • This is not a comprehensive list of the questions that health professionals may ask, as other relevant questions should also be considered depending on the unique situation, with each case being different and examined on an individual basis. You can see the checklist in full here.
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