What Is The Mental Capacity Act?

Last week I attended an interesting talk on the Mental Capacity Act (for beginners I should add) and I thought I’d share what I learned with you.

History

In 1994 a man with profound learning disabilities and complex care needs was released from residential care to live with a family in Surrey. He developed a routine and went about his life without serious incident until 1997. The family said of the first 3 years “It’s fair to say that it was a challenge – but it was rewarding to see how much [he] benefited from living in a family setting. At first he was very institutionalised, but he gradually became more confident and progressed beyond all expectations.”
He attended a day centre once a week and did so without issue until one day he got on the bus to find he had a different driver who took a different route to the day centre. The man arrived feeling very agitated and staff had difficulty calming him down. The next thing the family he lived with knew was that he had been “admitted informally” into hospital without their consultation. They were also informed that they were not allowed any contact with him. This was all done after one quick consultation with a doctor who did not know the man or his family, because of how the system worked then all they had to do was claim it was in the man’s “best interests” and they could remove his liberty with no option for appeal.
The family began a lengthy legal battle which lead to the man coming home and the discovery of the abuses he had experienced whilst detained. The Department of Health fought the legal action and eventually it ended up at the European Court of Human Rights. In 2004 the ECHR ruled in the man’s favour and as a result the UK government released the Deprivation of Liberty Safeguards, part of the Mental Capacity Act 2005, which came into force in 2009. This case is known as the Bournewood Case if you wish to do more reading.

Purpose

The Mental Capacity Act 2005 (MCA) should provide a legal framework for dealing with adults over the age of 16 (18 with regards to deprivation of liberty cases) who are believed to lack the capacity to make decisions for themselves. This does not just apply to people with profound learning disabilities or cognitive disabilities but also applies to people who have lost conciousness*, are in shock or any other state that means they may (even temporarily) lack the capacity to make crucial decisions.

Principles

The MCA is decision specific. This means that it is only applied to somebodies ability to make one particular type of “decision” at a time. This should help to stop someone who lacks the capacity to make complex financial decisions also automatically loosing the ability to choose what to eat, whether to undergo a particular medical procedure or which activities they can safely engage in. It bears in mind that not being able to dress is not the same as not being able to bank. The only people thought to lack all capacity are those who are unconscious. On to of that there are five key principles which provide a framework for applying the MCA:

  1. Presume Capacity – when assessing people should always be presumed to have full capacity in all areas until it its proven otherwise.
  2. Allow for Unwise Decisions – it’s important to remember that people with capacity can still make unwise decisions. If someone with diabetes decides they want to eat a bag of sugary sweets it’s not necessarily a sign of a lack of mental capacity. Part of having capacity is having the ability to make both wise and unwise choices.
  3. Maximise Communication – not being able to communicate easily is not the same as lacking capacity. If someone can make choices then every attempt to help them communicate meaningfully should be made so they can maintain independence. If someone is in an acute state of shock and a choice can wait until they have regained their ability to communicate then it should be left until they can make it. If someone can communicate via eye movement only then systems need to be put in place so they can do that rather than declaring them to lack capacity.
  4. Best Interests – If after looking at the above principles someone is still thought to be lacking capacity to make a specific decision then it must be ensured that any action taken is thoroughly in the persons best interests. Not the best interests of local government, a care firm or friends/family members but the best interests of the person deemed to lack capacity. This should help protect the individual from abuse.
  5. Least Restrictive Option – When deciding what action to put in place for someone deemed to lack capacity the least restrictive option should always be used. If someone is deemed to lack the capacity to make serious medical decisions they shouldn’t be institutionalised. All other options, such as the use an advocate should be exhausted first.

Assessment

The assessment is normally done in two stages:

  1. They look to see if there is an impairment in the functioning of the mind or brain. If there is no impairment then a person has capacity and the process stops there. If there is an impairment then they go onto the next stage.
  2. Assessors check to see if the individual, with regards to a specific decision, can; understand information, retain information, use information and communicate decisions. 
If the assessment/assessors is looking at a potential deprivation of liberty situation (when restraint/medication used to “restrain”/1 to 1’s/ 2 to 1’s etc… are being used over a long period of time) then 6 assessments should take place which are preformed by a GP and a Best Interest Assessor to ensure it’s in a persons best interests and the least restrictive option available. The longest deprivation of liberty orders are for 12 months.
Mental Health Act
I should say that the Mental Health Act (MHA) and the MCA are two different thing with some overlap. People sometimes assume the two things are the same, they are not. The MHA is designed to ensure people who need treatment for a severe mental health disorder receive it, even if it goes against their wishes (as long as it can be shown that not treating them would put themselves or others at risk). People with severe mental health disorders can still maintain full capacity, so if they need to be detained so that treatment can be provided the MHA would be used, not the MCA. If someone with capacity is “Sectioned” because of a mental health problem and is being deprived of liberty then that is nothing to do with the MCA. On the other hand, someone could have a mental health disorder that has had the effect of removing capacity to make certain decisions but is not severe enough to warrant a deprivation of liberty under the MHA. In that case the MCA could come into play.
I hope you found that as interesting as I did, and I’m sorry if there are any parts I’ve not explained very clearly. 
* I don’t know if you remember but in the USA there was a spate of stories about people who had undergone CPR suing those who tried to save them for assault (because CPR frequently results in broken ribs and bruising), the MCA now protects those in the UK from the same threat of legal action as long as the action is clearly in the persons without capacities best interests.
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