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A practical guide to the Mental Capacity Act

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Bridgit Dimond outlines the key principles of the Mental Capacity Act 2005.

The Mental Capacity Act 2005 became fully operational on 1 October 2007. It provides a statutory framework for decisions to be made on behalf of those who are incapable of doing so alone.
Section 1 of the Act establishes statutory principles, which must be followed:
• A person must be assumed to have capacity unless it is established that she or he lack capacity.
• A person is not to be treated as unable to make a decision unless all practicable steps to help her or him do so have been taken without success.
• A person is not to be treated as unable to make a decision merely because she or he make an unwise choice.
• An act or decision made under this Act for or on behalf of a person who lacks capacity must be carried out, or made, in her or his best interests.
• Before the act is carried out or the decision is made, it is essential to consider why it is needed and whether it can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.
The Act set up a new Court of Protection, which has:
• Powers to make decisions relating to personal welfare as well as finance and property;
• Deputies appointed by the Court of Protection;
• Introduced new concepts such as the lasting power of attorney.
The Act also makes provision for advanced decisions to be drawn up and for the appointment of independent mental-capacity advocates in specified circumstances.

The first step
The Mental Capacity Act 2005 only applies to decision-making on behalf of adults (those aged over 16 years) who lack the capacity to make their own decisions. It provides a statutory definition of mental capacity, which is in two stages. The first is that the person must be suffering from an impairment of, or a disturbance in the functioning of, the mind or brain (Box 1). The second is whether the person lacks the ability to make decisions as a result of this impairment or disturbance (Box 2).


Box 1. Inability to make decisions, Section 2 of the Mental Capacity Act 2005

• A person lacks capacity to make a decision for her or himself because of an impairment of, or a disturbance in the functioning of, the mind or brain;
• The impairment or disturbance can be either permanent or temporary;
• A lack of capacity cannot be established merely by reference to:
• A person’s age or appearance, or
• A condition or an aspect of her or his behaviour that might lead others to make unjustified assumptions about her or his capacity;
• Any question about whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities. This is the civil standard of proof, in contrast to the criminal standard of proof which is ‘beyond reasonable doubt’.


Box 2. Inability to make decisions, Section 3 of the Mental Capacity Act 2005

A person is unable to make a decision for her or himself if she or he is unable to:
• Understand the information relevant to the decision,
• Retain that information,
• Use or weigh that information as part of the process of making the decision, or
• Communicate their decision (whether by talking, using sign language or any other means);
• A person is not to be regarded as unable to understand the information if she or he is able to understand an explanation that is given to her or him in a way that is appropriate to her or his circumstances (using simple language, visual aids or any other means);
• A person only being able to retain the information relevant to a decision for a short period does not prevent her or him from being regarded as able to make the decision;
• The information relevant to a decision includes information about the reasonably foreseeable consequences of deciding one way or another or failing to make the decision.

Often for day-to-day care, it is the paid or informal carer who makes the assessment, but, where there is a significant decision to be made, it may be wise to bring in an expert. It is important to remember that a person may have the capacity to make one decision, but not another.

Best interests
If a patient lacks the mental capacity to make her or his own decisions, then action must be taken in their best interests. ‘Best interests’ is not defined in the Act but certain factors must be taken into account in order to decide what is in a person’s best interests (Box 3).

Box 3. Factors to determine ‘Best interests’, Section 4 of the Mental Capacity Act 2005

In determining what is in a person’s best interests, the person making the determination must not make it on the basis of:
• The person’s age or appearance, or
• A condition or an aspect of her or his behaviour that might lead others to make unjustified assumptions about what might be in her or his best interests.
The person making the determination must consider all the relevant circumstances* which the person is aware of and those that would be reasonable to regard as relevant and take the following steps:
1. She or he must consider whether it is likely that the person will at some time have capacity in relation to the matter in question and, if it appears likely that she or he will, when that is likely to be;

2. She or he must, so far as reasonably practicable, permit and encourage the person to participate, or to improve the person’s ability to participate, as fully as possible in any care given or any decision affecting the person;

3. If life-sustaining treatment is considered she or he must not, in considering whether the treatment is in the best interests of the person concerned, be motivated by a desire to bring about the person’s death;

4. She or he must try to ascertain and consider:
• The person’s past and present wishes and feelings (and, in particular, any relevant written statement made by the person when she or he had capacity),
• The beliefs and values that would be likely to influence the person’s decision if she or he had capacity,
• The other factors that the person would be likely to consider if she or he were able to do so;

5. They must take into account, if it is practicable and appropriate to consult the person, the views of:
• Anyone named by the person as someone to be consulted on the matter in question or on matters of that kind,
• Anyone engaged in caring for the person or interested in her or his welfare,
• Any donee (that is, the person who has been named in the lasting powers of attorney (LPA) by the donor as the person who will make decisions on behalf of the donor) of a lasting power of attorney granted by the person,
• Any deputy appointed for the person by the court;

6. The duties imposed by sections 1–5 apply to the use of any powers under a LPA or by a person who reasonably believes that another person lacks capacity.

*Relevant circumstances are those of which the person making the determination are aware and those that it would be reasonable to regard as relevant.

Restraint
If restraint is necessary to safeguard a patient’s best interests, then further statutory provisions must be satisfied. Restraint is only permissible if the carer reasonably believes it is necessary to prevent harm to a patient and the restraint is a proportionate response to the likelihood of the patient suffering harm, and the seriousness of that harm. Clearly any such use should be discussed with the professionals and informal carers involved in the patient’s care. This should be documented and the reasons should be recorded.

Conclusion
If a patient is assessed as being unable to make her or his own decisions, the carers must decide what treatment and care is in her or his best interests. There should be a local policy to guide decision-making.
This policy should account for the possibility of the patient having appointed a friend or relative with a lasting power under which they can make personal welfare decisions if the patient is mentally incapable of so doing. The policy should also take account of the possibility that the patient has drawn up an advance decision.
The Mental Capacity Act may seem bewildering, but it incorporates many principles that had already been followed at common law (case law or judge-made law). What is required is clarity of thinking in following the statutory principles and steps, and good documentation.

Bridgit Dimond, LLB, MA, DASA, AHSA, is barrister-at-law and emeritus professor, University of Glamorgan, Pontypridd.

• Further information, including the Code of Practice, can be obtained at www.justice.gov.uk

Further reading
Dimond, B.
(2007) The Legal Aspects of Mental Capacity. Oxford: Blackwell Publishers.

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