Understanding the Mental Capacity Act: A Guide to supporting autonomy and safeguarding rights
The Mental Capacity Act (MCA) 2005 is a vital piece of legislation in England and Wales that supports people who may lack the ability to make certain decisions for themselves. Whether you work in education, health, social care, or safeguarding, understanding the principles of the MCA is key to promoting dignity, autonomy, and human rights.
What is the Mental Capacity Act?
The Mental Capacity Act 2005 provides a legal framework
to protect and empower people who may lack the capacity to make their own
decisions about their care and treatment. It covers decisions about everyday
matters - like what to eat or wear - through to more serious ones such as
medical treatment or financial planning.
Who does it apply to?
The Mental Capacity Act (MCA) applies to everyone over
the age of 16. It isn’t limited to a specific group of individuals - it covers
anyone who, at any point, may be affected in their ability to make decisions.
This could be due to individual needs or temporary circumstances that impair
their capacity.
The FIVE core Principles of the Mental Capacity Act
Understanding these principles is fundamental to good
practice:
1. Presumption of capacity
Always start with the assumption that a person has the
capacity to make a decision. Don’t make judgments based on age, appearance,
condition, or behaviour alone.
2. Support to make decisions
Take all practical steps to help someone make a decision
before deciding they lack capacity. This might include using clear language,
providing information in accessible formats, or choosing a quieter environment.
3. Unwise decisions
People have the right to make decisions others may view
as risky or unwise. The focus should be on capacity, not the outcome.
4. Best interests
If a person lacks capacity, any decision made on their
behalf must be in their best interests. This includes considering their past
and present wishes, beliefs, values, and involving family, carers or advocates.
It’s not about what you would do - it’s about what’s right
for them.
5. Least restrictive option
When making decisions on someone’s behalf, look for
solutions that limit their rights and freedoms the least. This aligns with
human rights principles and promotes independence.
How is capacity assessed?
Capacity is decision-specific and time-specific. This
means someone may be able to make some decisions but not others, and their
capacity can fluctuate over time.
The two-stage test:
1. Is there an
impairment or disturbance in the functioning of the mind or brain?
o This could be due to illness, injury,
disability, under the influences of substances, being overly tired or affected
and overwhelmed with emotions such as grief, fear or shock.
2. Does this
impairment mean the person is unable to make a specific decision when required?
To determine this, assess whether the person can:
o Understand the relevant information
o Retain that information long enough to
make the decision
o Weigh up the information to reach a
choice
o Communicate their decision (by any
means)
What happens if someone lacks capacity?
When a person is assessed as lacking capacity for a
specific decision:
· A
decision must be made on their behalf following the best interests principle.
· Document
the decision-making process clearly.
· Involve
family members, friends, or advocates if appropriate.
· Consider
if a Lasting Power of Attorney (LPA) or Deputy appointed by the Court of
Protection is in place.
· If it
relates to medical treatment, refer to any valid Advance Decision to Refuse
Treatment (ADRT) the person has made.
Executive Functioning:
Understanding executive functioning is
essential when supporting someone with their decision-making ability. Executive
functioning refers to the brain’s capacity to manage and organise thoughts,
actions, and problem-solving. It includes the skills needed to learn new
information, recall and apply past knowledge, and use this to make and carry
out decisions in everyday life. In essence, it's what allows a person to follow
through and act on the decisions they have communicated.
Safeguards within the MCA
1. Lasting Power of Attorney (LPA)
This allows someone to appoint a trusted person to make
decisions on their behalf should they lose capacity in the future. There are
two types:
· Health
and welfare
· Property
and financial affairs
2. Court of Protection
This court makes decisions for individuals who lack
capacity when disputes arise or no LPA exists.
3. Independent Mental Capacity Advocate (IMCA)
An IMCA must be involved when a person lacking capacity
has no close family or friends, particularly in serious medical treatment or
accommodation decisions.
4. Deprivation of Liberty Safeguards (DoLS)
These safeguards ensure that individuals are only
deprived of their liberty when it’s in their best interests and necessary for
their safety or care. DoLS will eventually be replaced by Liberty Protection
Safeguards (LPS), which aim to simplify the process.
Real-world applications of the MCA
· In
Education: For young people over 16 with SEND or cognitive impairments,
educators must involve them in decision-making and consider their capacity in
transition planning.
· In
Health and Social Care: Every treatment decision should start with a capacity
assessment. Blanket assumptions should be avoided.
· In
Safeguarding: Understanding capacity is essential in safeguarding adults at
risk of harm, particularly around consent and self-neglect.
Summary: Empowerment at the heart of the MCA
The Mental Capacity Act is not just about making
decisions for people - it’s about giving them every opportunity to make their
own decisions. It's a legal and moral duty to uphold a person’s autonomy,
dignity, and rights, even in complex circumstances.
Understanding and applying the MCA ensures that people
are treated with respect and fairness, regardless of their situation.
Further Reading and Resources
· Mental
Capacity Act Code of Practice (Gov.uk)
· Social
Care Institute for Excellence (SCIE)
– MCA Resources
· Office
of the Public Guardian
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