In the first of three linked articles, Andrew Alonzi provides a reminder for health and social care practitioners about the Mental Capacity Act 2005.
Almost 15 years have passed since the Mental Capacity Act 2005 (MCA 2005) was first introduced in England and Wales.
Parts of the MCA, including the statutory IMCA service in England and the criminal offence of ill treatment or wilful neglect, were introduced in April 2007, along with the MCA Code of Practice, to which practitioners must have regard. The remainder of the MCA was fully implemented in October 2007.
With the introduction of the new Liberty Protection Safeguards this year, we will soon to see the biggest changes to the MCA since April 2009, when the Deprivation of Liberty Safeguards (DoLS) were first introduced.
Purpose of the MCA
The MCA is designed to provide statutory protection for people aged 16 years and over who are deemed unable to make their own decisions. It makes clear who can take those decisions on their behalf, when and how. The MCA therefore simultaneously empowers and protects.
The MCA covers a range of decisions or actions that might be taken on behalf of a person who lacks capacity - from day-to-day decisions about personal welfare, to those about healthcare, medical treatment and the management of property and financial affairs. The MCA excludes decisions to treat or consent to treatment for a mental disorder under the Mental Health Act 1983, where the patient is liable to, and should, be detained for treatment of that mental disorder.
The MCA makes clear how people can plan ahead for a time when they may lose capacity to make their own decisions about their treatment or care. Advance decisions to refuse medical treatment were placed on a statutory footing, although it remains the case that it is not be possible to compel medical treatment. Advance statements of wishes and preferences are non-binding, but must be taken into account when deciding upon the best interests of a person lacking capacity who, it is proposed, should receive particular treatment or care.
MCA Code of Practice
The MCA Code of Practice has statutory force. Health and social care staff must “have regard to” the Code when working with adults over 16 years who lack capacity to make decisions for themselves. This means that practitioners must be aware of the guidance in the Code when proposing to act or make a decisions for a person who lacks capacity. They also need to be able to explain how they have had regard to the Code and must be able to give good reasons for any departure from it.
Lack of capacity
The MCA introduced a new, single definition test for lack of capacity:
“an inability to make a decision due to an impairment of, or disturbance in the functioning of, the mind or brain.”
A person may lack capacity to make a particular decision, or take a particular action for themselves at the time the decision or action needs to be taken.
For the purpose of the definition, it does not matter if the disturbance is permanent or temporary (for example, resulting from an accident, anaesthetic or the influence of alcohol). Of course, a best interests decision maker must consider whether it is likely the person will regain capacity in time to take the decision in question and, if so, when.
The definition is designed to cover a person’s inability to understand and retain information relevant to a decision, to use or weigh that information as part of the decision-making process, or to communicate that decision by any means.
So, for example, if a doctor suspects that their patient is unable to understand or weigh information relevant to their medical treatment, then (subject to further enquiry), the patient will come within the scope of the MCA. Even if the doctor has to involve the multi-disciplinary team as part of this process, the final decision about capacity is that of the doctor who proposes to make the decision or carry out the action on the patient’s behalf.
It is worth noting that a person is not to be regarded as unable to understand relevant information, for the purposes of the statutory test if they are able to understand information an explanation of it given to them in a way that is appropriate for their circumstances (for example, using simple language or visual aids).
A person’s lack of capacity cannot be established merely by reference to their age, appearance, or any condition or aspect of their behaviour that might lead others to make unjustified assumptions about their capacity. This is sometimes referred to as the clean slate approach.
It is also important that a person’s inability to understand, retain, weigh or communicate (it is enough if the person is unable to do any one or more) must be caused by the identified impairment or disturbance identified, although this does not have to be the sole cause.
The five principles
Health and social care practitioners need to be aware of the pervasive five principles in the MCA. These principles should guide everything practitioners do when proposing to take a decision or act on behalf of a person who is thought to lack capacity. The MCA Code of Practice
There is recognition that every adult over the age of 16 years has the right to make their own decisions, capacity to do so being presumed in the absence of evidence to the contrary. Such evidence would be obtained using the two-stage test of capacity.
A person must be given all practicable help to make their own decision before being treated as incapable of doing so. The aim is to max-out the person’s capacity for decision making. For example, if a person has difficulty understanding information relevant to a decision about medical treatment, the doctor may explore others ways to present information that may make it easier for the person to understand it, such as more accessible forms of communication (non-verbal, visual).
A decision that a practitioner may think unwise does not mean that the person lacks capacity to take it. Rather, it could indicate that the person’s preferences are different, perhaps resulting in them giving weight to different factors.
Any action or decision taken for an adult who lacks capacity must be in their best interests. Best interests is established using a best interest checklist, or process. A strong element of that process includes the person’s wishes and preferences.
Finally, the action or decision being proposed must be less restrictive in terms of the person’s rights and freedom of action. Using less, rather than least, allows decisions to be made in a person’s best interests which may unavoidably involve some restriction on freedom. Deprivation of liberty is an example of this.
The second article will explore best interests decision making, protection from liability and restraint.