Working With the Mental Capacity Act 2005

2018

PROTECTION, POWERS, DEFENCE AND DUTIES

‘The Mental Capacity Act 2005 established a comprehensive scheme for decision-making on behalf of people who are unable to make the decision for themselves. The decision-maker - whether a carer, donee of a power of attorney, court-appointed deputy or the court - stands in the shoes of the person who is unable to make the decision - known as P - and makes the decision for him. The decision has to be that which is in the best interests of P.’

Supreme Court judgment, N v ACCG & Ors [2017] UKSC 22

The Mental Capacity Act 2005 provides a statutory framework for assessing whether a person has mental capacity to make certain decisions. It also defines how others can make decisions on behalf of those who lack mental capacity to decide for themselves. Its scope is wide-ranging, involving decisions regarding healthcare, social care and financial affairs. The Act directly addresses the issue of providing care and treatment for people who lack the mental capacity to consent to it.

Prior to the legislation being introduced, such decisions lacked legal protection unless they followed the common law rules relating to mental capacity and best interests. These common law rules were derived from previous cases that had been to court in which judges had set out how mental capacity should be assessed and given guidance in relation to making best interest decisions. However, many health and social care staff were unaware of these court cases governing assessments of mental capacity and best interests decision-making. This resulted in assessments with no basis in law and consequently no legal protection for staff or the individuals they assessed. It was not uncommon for assessments of mental capacity to be unlawful because they were based solely on a person’s diagnosis, for example a doctor might decide that someone lacked mental capacity just because they had dementia. Other assessments had been based solely on inappropriate testing, such as psychiatric assessments establishing a mental health diagnosis, a mini mental state examination or an IQ test where low results were seen to equate to a lack of mental capacity. Although these were important tests for different purposes, for example obtaining a diagnosis, they were unlawful ways to assess mental capacity.

The Act resolved this problem by clearly defining how to assess mental capacity and best interests. The legislation can be seen as working in a number of ways – providing protection, a defence, powers and duties.

Protection

The Act provides protection for people whose mental capacity is called into question. As indicated above, it was not uncommon prior to the introduction of the legislation for people to be labelled as lacking mental capacity to make decisions based purely on their diagnosis, such as dementia. For these people, the Act provides protection by asserting that regardless of a person’s diagnosis or behaviour, they must be assumed to have mental capacity. Any doubt over a person’s mental capacity must be proven by following the assessment laid down in the legislation and evidencing the reason they lack mental capacity. The person being assessed has to prove nothing.

For people lawfully assessed as lacking capacity, the legislation provides protection by setting out a mandatory procedure for making decisions on their behalf (best interest decisions). The procedure takes into account the wishes and values of the person and those closest to them and involves the person in the decision-making as far as possible. Because of this approach, the decision arrived at may not necessarily be in the person’s best medical interests or the safest option available but will be respectful of them as an individual and their human rights. The importance of the Act was underlined in 2015 by Lord Faulks, Minister of State (Ministry of Justice) during a House of Lords debate. Referring to the terrible abuse of learning disabled adults at the Winterbourne View private hospital, Lord Faulks stated:

‘… the failings at Winterbourne View were completely unacceptable and use of the Mental Capacity Act there was poor, if not non-existent. The Government strongly believe that better implementation of the Act will greatly reduce the likelihood of a future Winterbourne View situation.’

In July 2017, a report called Learning from SARs: a report for the London Safeguarding Adults Board was published. It is available from: www.londonadass.org.uk/learning-from-sars-report. The report analysed 27 separate safeguarding adult reviews from 17 safeguarding boards across London. The majority of these reviews were statutory under section 44 of the Care Act 2014 which meant the person concerned had died or suffered serious abuse or neglect. The detailed report found many issues for learning but the key one was:

‘Twenty one of the 27 reports commented on mental capacity, which represents therefore the most frequently represented learning about direct practice … much of the learning in the SARs is about missing or poorly performed capacity assessment, insufficient scepticism and respectful challenge of decision-making and possible consequences, and in some cases about an absence of best interests decision-making.’

The Act also contains a criminal offence which can be used to prosecute those who wilfully neglect or ill-treat people lacking mental capacity. In addition, for the most vulnerable people, the legislation provides a free independent mental capacity advocacy service (IMCA).

The Act also provides protection for the staff and carers working with them. By using the Act, staff are protected for the decisions they make despite the person lacking mental capacity to consent to them. However, if their actions are negligent, they are not protected. For example, a person may lack capacity to consent to dental treatment. Their dentist may decide in accordance with the Act, that it would be in their best interests to have a tooth extraction, a decision for which the dentist would be protected if the Act was used correctly. However, if the dentist then carried out the treatment in a negligent way and extracted the wrong tooth, they would not be protected for this mistake and would be responsible in law for their negligence.

A defence

Section 5 of the Act contains a defence. As long as people use the Act properly, it gives them a defence if they make decisions in the best interests of those who lack mental capacity to decide or consent. The Act provides a standard method to make a best interests decision which is detailed in the chapter Best Interests Decisions. Failure to use the Act where it applies means a professional is not protected by this defence when making decisions on behalf of the person who lacks mental capacity. In the case of Elaine Winspear v City Hospitals Sunderland NHS Foundation Trust [2015] EWHC 3250 a doctor failed to apply the best interests checklist when completing a DNACPR notice for a hospital patient lacking mental capacity about this decision. Specifically, the doctor failed to consult the patient’s mother breaching the duty to consult anyone interested in the welfare of the person under section 4(7) of the best interests checklist. The judge, in finding against the doctor, stated:

‘Accordingly I am satisfied that there was a breach of the s.4(7) duty; no s.5(2) defence exists to this claim …’

Powers

The Act provides fundamental powers in relation to financial, health and social care decisions. For people who have capacity, it is the power to plan ahead for a time when they may lack capacity. Under the Act, people are able to assign another person to make these decisions on their behalf in case they lose the mental capacity to do so themselves. This is called a lasting power of attorney. Those with mental capacity can also record their wishes to refuse future treatment, through an advance decision (previously known as a living will). The Act provides a statutory procedure to do this and formally recognises its authority.

Duties

The defence mentioned above is only accessible by following the Act. Professional staff need to provide evidence they are following the rules and procedures laid down within the legislation. Statutory and non-statutory organisations providing health and social care for people who lack capacity must ensure that their policies and practices take account of the Act. They must comply with the legal requirements the legislation places upon them. Managers need to ensure staff have an understanding of the Act and can use the powers provided correctly. Lord Dyson in the Court of Appeal ruling on the failure of the Metropolitan Police to use the Act when taking action against a man with a learning disability stated:

‘As I have said, the Mental Capacity Act does not impose impossible demands on those who do acts in connection with the care or treatment of others. It requires no more than what is reasonable, practicable and appropriate.’

ZH v the Commissioner of Police for the

Metropolis [2013] EWCA Civ 69

Implementation of the Act

Although called the Mental Capacity Act 2005, the full powers of the legislation only came into force on 1st October 2007. The Deprivation of Liberty Safeguards came into force in April 2009. The Act has authority in the legal jurisdiction of England and Wales. Scotland and Northern Ireland have separate rules.

Brexit

The United Kingdom leaving the European Union will have no legislative impact on the Human Rights Act 1998 or the Mental Capacity Act 2005.

Interpretation

This book provides a detailed explanation of the Mental Capacity Act however it should not be regarded as a substitute for the legislation itself. Nothing in it is intended to be, or should be, relied upon as legal advice. As with all legislation, the Act is open to interpretation by judges. Accordingly, the Act should be read in conjunction with the latest relevant case law from the Court of Protection and any subsequent appeals. Some judgments of the European Court of Human Rights are also relevant. The outcome of such legal proceedings will further clarify parts of the Act.

CURRENT CHALLENGES IN PRACTICE

The Act celebrated its tenth year in October 2017. However, despite the great benefits the legislation offers to individuals and professionals (see chapter Protection, Powers, Defence and Duties) a major concern remains that the core elements of the Act are not being applied effectively or consistently across health and social care services.

Care Quality Commission

A report by the Care Quality Commission (CQC), The state of care in NHS acute hospitals: 2014 to 2016, published in March 2017 stated:

‘Understanding about the Mental Capacity Act 2005 and Deprivation of Liberty Safeguards, and in turn seeking patients’ consent to treatment, is another area where many hospitals struggle to perform well. Often acute hospitals do not properly understand the legislation or how to apply the provisions of the Act.’

In October 2017, the CQC’s most recent report, The state of health care and adult social care in England 2016/17 noted:

‘Capacity is an important area where providers and staff often seemed to lack understanding. There was often not enough time spent assessing a person’s changing capacity. In acute hospitals, adult social care and mental health services, inspectors felt staff needed to be more aware of the importance of assessing different areas of a person’s capacity, and the fact that these can fluctuate on a daily basis.’

Both reports are available from: www.cqc.org.uk

Local Government and Social Care Ombudsman

In July 2017 the Local Government and Social Care Ombudsman produced a report called The Right to Decide: Towards a greater understanding of mental capacity and deprivation of liberty. It was triggered by the fact that approximately 20% of all complaints to the Ombudsman are now mental capacity or Deprivation of Liberty Safeguards related and 69% of these cases were upheld (fault found) which is much higher than the average for other ombudsman complaints. The Ombudsman noted:

‘This report looks at the common issues we see from our investigations when a council or care provider is involved with a person who lacks mental capacity. These include failures to carry out assessments to ascertain whether someone has capacity to make decisions; poor decision making when deciding on someone’s best interests; and not appropriately involving families and friends in the process.’ The report is available from www.lgo.org.uk

House of Lords Select Committee findings

The findings of the CQC and Ombudsman above confirm previous detailed and exhaustive research undertaken by the House of Lords in 2013-2014. The House of Lords Select Committee on the Act heard evidence from numerous experienced health and social care professionals, carers, judges, lawyers and professional bodies (such as the British Medical Association, the CQC and Mind) about their experience of the Act in practice. The Committee’s final report was published on 13th March 2014 and stated that:

‘The Mental Capacity Act was a visionary piece of legislation for its time, which marked a turning point in the statutory rights of people who may lack capacity … That was the aspiration, and we endorse it.’

‘Our findings suggest that the Act, in the main, continues to be held in high regard. However, its implementation has not met the expectations that it rightly raised. The Act has suffered from a lack of awareness and a lack of understanding. For many who are expected to comply with the Act it appears to be an optional add-on, far from being central to their working lives. The evidence presented to us concerns the health and social care sectors principally. In those sectors the prevailing cultures of paternalism (in health) and risk-aversion (in social care) have prevented the Act from becoming widely known or embedded. The empowering ethos has not been delivered. The rights conferred by the Act have not been widely realised. The duties imposed by the Act are not widely followed.’

The report made an extensive series of recommendations for the government to improve the application and use of the Act. The full report is available from:

www.publications.parliament.uk/pa/ld201314/ldselect/ldmentalcap/139/13902.htm

Government commitments

The government formally responded to the House of Lords’ report in June 2014 with an action plan called Valuing every voice, respecting every right: Making the case for the Mental Capacity Act. It stated the government:

‘… share the Committee’s concern at the low levels of awareness and understanding of the Act. Too many people who may lack capacity may be missing out on the legal rights that the MCA gives them. This is not tolerable, and we are determined to put this right.’

Common issues for staff in practice

The authors of this book would agree with these statements. We have over ten years’ experience of delivering talks to frontline health and social care staff, the police, fire service and prisons and find that there are some common issues with understanding the Act in practice which we hope this book will help to address. From the questions we receive, here are a few examples of the common misconceptions we have found:

1.Recording that a compliant patient lacking mental capacity has consented.

This is wrong. For a person to be able to consent, they must have the mental capacity to do so, that is to understand, retain, use or weigh the information and then communicate a decision. Staff must ensure they understand what consent is as opposed to ‘compliance’ (see chapter Consent and the Mental Capacity Act).

2.Not making a best interests decision if the patient is compliant.

If a person lacks the mental capacity to consent, the authority to deliver care or treatment (under the Act) is provided through a best interests decision (and the section 5 defence), even if the patient is compliant. However, many staff do not undertake a best interests decision if a patient is not resisting. This means only resisting patients will get the benefit of a legally compliant best interests decision (see chapter Best Interests Decisions).

3.Not recording a best interests decision in cases of inaction.

Sometimes the conclusion of a best interests assessment will be to take no further action. For example, a GP may decide that the level of restraint required to deliver insulin to a type 2 diabetic patient is greater than the proposed benefits and it is in the person’s best interests not to receive insulin on a particular day (the decision to be reviewed on another date). If the patient lacks mental capacity, this is still a best interests decision taken by the GP and not a refusal of consent by the patient. Accordingly, if the GP is challenged and a court were to look at their records, there would need to be evidence that a mental capacity and best interests assessment were carried out. This would provide evidence of the GP’s reasoning (see chapter Best interests Decisions).

4.Not realising that a defence in law is necessary when treating or caring for someone who lacks mental capacity.

Many staff do not realise that if they treat and care for people who lack the mental capacity to consent, without following (and recording) the Mental Capacity Act, they will not be able to rely on the defence contained within section 5 of the Act in the event of a legal claim being made against them. Not having knowledge of the Act is not an accepted defence.

5.Staff only stating their conclusions and not their reasoning.

It is not enough to state that a patient lacks mental capacity. Those making decisions under the Act cannot keep their reasoning to themselves. If staff conclude that a person lacks mental capacity, they must explain why. For example, what is it that the person is unable to understand or use or weigh? Similarly, just recording what is in a person’s best interests is insufficient. Again, that is the conclusion and does not evidence any reasoning or evidence that the decision-maker completed an assessment of all the factors under the best interests checklist to explain why the decision is in the person’s best interests.

For guidance on good quality recording please see the chapters on Assessing Mental Capacity and Best Interests Decisions.

CONSENT AND THE MENTAL CAPACITY ACT

The legal foundation and starting point for the majority of health and social care decisions for adults, is their consent. Understanding the connection between consent and the Mental Capacity Act (the Act) is vital for staff working with adults in any care setting. In the case of Wye Valley NHS Trust v Mr B [2015] EWCOP 60, the judge summarising a Supreme Court ruling, stated:

‘Every adult capable of making decisions has an absolute right to accept or refuse medical treatment, regardless of the wisdom or consequences of the decision. The decision does not have to be justified to anyone. Without consent any invasion of the body, however well-meaning or therapeutic, will be criminal assault.’

In the case of Montgomery v Lanarkshire Health Board [2015] UKSC 11 the Supreme Court stated:

‘An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken.’

A person with mental capacity can therefore refuse any treatment including life-saving treatment. This was the case in King’s College Hospital NHS Foundation Trust v C and V [2015] EWCOP 80 where a woman receiving dialysis treatment decided she wanted it to stop. The consequences of refusing further dialysis was relatively imminent death. Doctors questioned whether she had the mental capacity to make the decision (to refuse treatment). The judge found she did have mental capacity as she understood and accepted the consequences of her decision and was therefore able to refuse consent to further treatment. The judge stated:

‘A capacitous individual is entitled to decide whether or not to accept medical treatment. The right to refuse treatment extends to declining treatment that would, if administered, save the life of the patient.’

In response to the Supreme Court ruling of Montgomery above, the Royal College of Surgeons revised their professional guidance in 2016 (Consent: Supported Decision-Making). It notes:

‘Patients have a fundamental legal and ethical right to decide what happens to their bodies. It is therefore essential that patients have given valid consent for all treatments and investigations.’

‘Touching another person without permission is the definition of battery, so the patient’s consent is a necessary step prior to starting any treatment.’

The guidance is available from: www.rcseng.ac.uk

The Nursing and Midwifery Council’s The Code: Professional standards of practice and behaviour for nurses and midwives (www.nmc.org.uk) states:

‘4.2 make sure that you get properly informed consent and document it before carrying out any action.’

It should be noted that the legal requirement to obtain consent applies to anyone working with adults including social workers.

Informed consent

For a person to consent, they must be given information relevant to the decision and their agreement must be freely obtained (they cannot be coerced). This is often called informed consent. The information that needs to be given to the person is three-fold:

1.Nature – what is going to happen?

2.Purpose – why is it necessary?

3.Consequences – the risks/consequences/outcomes of giving consent or refusing.

For example, in prescribing medication to a person, the prescriber would need to explain the following:

1.Nature (what) – ‘I would like to prescribe you a medication called x’

2.Purpose (why) – ‘because I believe you have y condition and this will treat it’

3.Consequences – ‘taking the medication should alleviate/treat/end your condition/symptoms but may also lead to these side-effects’

The Department of Health, in its guidance on consent Reference guide to consent for examination or treatment states:

‘For consent to be valid, it must be given voluntarily by an appropriately informed person who has the capacity to consent to the intervention in question.’

‘Acquiescence where the person does not know what the intervention entails is not ‘consent’.’

The burden falls on the care provider to provide this information and check whether the person has understood it. It is not, for example, adequate to just give a person a leaflet to read and presume they have understood it. In addition, it is not enough that a patient or client signs a consent form. In relation to this, the Royal College of Surgeons’ professional guidance (referenced above) notes:

‘The signing of a consent form by a patient does not amount to valid consent for treatment and is not sufficient evidence for it in a court of law. The signed form is only confirmation that a process has been followed whereby the patient has agreed to proceed to the next stage of treatment. However, the patient’s consent will be invalid if they have not been given the appropriate information, communicated in a way that they can understand well enough to make a decision.’

The Supreme Court’s view in this regard was given in the case of Montgomery v Lanarkshire Health Board [2015] UKSC 11:

‘The doctor’s duty is not therefore fulfilled by bombarding the patient with technical information which she cannot reasonably be expected to grasp, let alone by routinely demanding her signature on a consent form.’

‘It is nevertheless necessary to impose legal obligations, so that even those doctors who have less skill or inclination for communication, or who are more hurried, are obliged to pause and engage in the discussion which the law requires.’

In relation to informing people of the risks of treatment, the Supreme Court in the Montgomery ruling discussed how much information should be provided and this should be considered carefully by clinicians. Further, some exceptions were considered; it was accepted that there may be circumstances in which a person does not want to be informed of the risks of treatment (paragraph 85) and where giving such information could be deemed to be detrimental to a person’s health (paragraph 88).

Finally, even if a person understands all the information and agrees, their agreement or compliance will not be considered valid consent if it was gained by coercion (not freely given). See the chapter Inherent Jurisdiction for further information in this regard.

Consent and duty of care

In the case of Wye Valley NHS Trust v Mr B [2015] EWCOP 60 the judge stated:

‘Without consent any invasion of the body, however well-meaning or therapeutic, will be criminal assault.’

If a person has capacity and refuses care or treatment this must be respected (unless other law such as the Mental Health Act applies). The notion that a duty of care towards a patient would allow a doctor or other professional to override the refusal of consent for care or treatment by a patient was addressed in the case of Anita Border v Lewisham & Greenwich NHS Trust [2015] EWCA Civ 8. The case concerned the insertion of a cannula in an accident and emergency department for a woman with a broken arm. Three senior judges in a unanimous ruling in the Court of Appeal found that the doctor:

‘… was in breach of his duty of care by inserting the cannula without the claimant’s consent …’

Duty of care means that any care or treatment that is provided must be of a reasonable standard and not delivered negligently. It does not mean that treatment may be forced upon a capacitated patient who is refusing consent.

There are legislative alternatives which can apply to people with the mental capacity to refuse consent to treatment. The Mental Health Act 1983, for example, could be used to treat someone’s mental disorder if the legal criteria of the Mental Health Act are fulfilled.

Implied consent

Consent may be indicated through non-verbal methods such as holding out an arm. However, it must be remembered that the indication of consent through any means is only valid if a person has the mental capacity to give that consent. For example, someone with a severe learning disability may sit in a chair and hold out their arm when a nurse approaches with a syringe. If the patient does not understand why they are holding out their arm or the purpose of the syringe (even in broad terms and with support), they are unlikely to have the mental capacity to consent. Where there is a doubt over someone’s mental capacity, the mental capacity assessment should be carried out. If the person lacks the mental capacity to consent to the injection, then a best interests assessment would be required. Following this process properly would provide a defence to the nurse under section 5 of the Act. The statutory Code of Practice to the Mental Health Act (para 24.35) notes:

‘By definition, a person who lacks capacity is unable to consent or refuse treatment, even if they co-operate with the treatment or actively seek it.’

What if a person cannot give or refuse consent?

If a person (aged 16+) is not able to give or refuse consent because they lack mental capacity, the Mental Capacity Act may come into effect. In the case of Heart of England NHS Foundation Trust v JB [2014] EWCOP 342, which concerned surgery for a woman with schizophrenia, the judge described this connection between consent and the Act as follows:

‘… anyone capable of making decisions has an absolute right to accept or refuse medical treatment, regardless of the wisdom or consequences of the decision. The decision does not have to be justified to anyone. In the absence of consent any invasion of the body will be a criminal assault. The fact that the intervention is well-meaning or therapeutic makes no difference.’

‘There are some who, as a result of an impairment or disturbance in the functioning of the mind or brain, lack the mental capacity to decide these things for themselves. For their sake, there is a system of legal protection, now codified in the Mental Capacity Act 2005.’

Common law doctrine of necessity

Finally, some staff may want to rely on the common law doctrine of necessity rather than use the Mental Capacity Act if a person is unable to give consent. The Metropolitan Police attempted to use this defence in 2012 when physically restraining (but not arresting) a young man with a learning disability (case of ZH v Commissioner of Police for the Metropolis [2012] EWHC 604 (QB)). The judge finding against the police stated:

‘For my part I am satisfied that where the provisions of the Mental Capacity Act apply, the common law defence of necessity has no application. The Mental Capacity Act requires not only the best interests test but also specific regard to whether there might be a less restrictive way of dealing with the matter before the act is done, and, an obligation, where practicable and appropriate to consult them, to take into account the views of the carers. It cannot have been the intention of Parliament that the defence of necessity could override the provisions of the Mental Capacity Act which is specifically designed to provide specific and express pre-conditions for those dealing with people who lack capacity.’

The Metropolitan Police appealed to the Court of Appeal (case of ZH v the Commissioner of Police for the Metropolis [2013] EWCA Civ 69). The Court of Appeal judges agreed with the earlier judgment and stated:

‘As I have said, the Mental Capacity Act does not impose impossible demands on those who do acts in connection with the care or treatment of others. It requires no more than what is reasonable, practicable and appropriate.’

Although the common law doctrine of necessity remains its use is limited to genuinely urgent situations where the Mental Capacity Act does not apply. As the Mental Capacity Act can be applied very quickly (and recorded after the event) if the situation demands; health or social care staff would need to show why they could not apply the Act. For example, a person who is unconscious would be assessed as lacking mental capacity immediately under the Act.

Summary

1.Consent is the starting point for making health or social care decisions for adults.

2.Obtaining consent means informing a person (with mental capacity) of key information, assessing whether they understand it and ensuring their consent is freely given (not coerced).

3.An adult with mental capacity can refuse all care or treatment and this cannot be overridden by the ‘duty of care’ of health or social care staff.

4.If a person is unable to consent, the Mental Capacity Act may apply.

5.Where the Act applies, relying on the common law doctrine of necessity is not sufficient.

PROTECTING VULNERABLE ADULTS

The Act is widely considered to be a rights-based piece of legislation. In 2014 the House of Lords, in its review of the Act, noted:

‘The Mental Capacity Act was a visionary piece of legislation for its time, which marked a turning point in the statutory rights of people who may lack capacity.’

In the same year, a judge considering surgical intervention for a woman with schizophrenia (case of Heart of England NHS Foundation Trust v JB [2014] EWCOP 342) stated:

‘There are some who, as a result of an impairment or disturbance in the functioning of the mind or brain, lack the mental capacity to decide these things for themselves. For their sake, there is a system of legal protection, now codified in the Mental Capacity Act 2005.’

The diagram below shows some of the rights the Act provides for individuals and is written from the point of view of a person whose capacity may be called into question. The rights described relate just to the principles and mental capacity assessment (sections 1-3 of the Act). The full Act contains many other additional rights including the best interests assessment and advocacy, which are covered in later chapters.

The diagram above is based on a lecture given by Sir James Munby in May 2012 at the Royal Society of Medicine.

The rights above protect everyone whose ability to make decisions about their health, social care or finances is called into question. Without the Act, such statutory legal protection would be missing; for example, a person with dementia could be considered to lack mental capacity for all decisions simply because of their diagnosis. The individual rights illustrated in the diagram above place legal duties on health and social care staff.

USING THE ACT IN PRACTICE

For health and social care staff, the Act, and indeed this book, can be distilled into the following chart in terms of applying the legislation in daily practice. Although the Act is wide ranging in its application, it is essentially very simple to use in day-to-day practice.

WHO, WHERE AND WHICH STAFF CAN USE THE ACT?

Who is affected?

The Act affects people aged 16 and over who have an impairment of or disturbance in the functioning of the mind or brain that prevents them from being able to make a decision. Conditions that may cause incapacity include:

•dementia

•learning disabilities

•brain injury (for example, stroke or physical trauma to the brain)

•mental health problems

•autism

•confusion (for example from an infection, caused by treatment or due to substance misuse)

•unconsciousness

•neurological conditions

•any other condition that causes ‘an impairment of, or disturbance in the functioning of, the mind or brain’

The list above is not exhaustive. The impairment or disturbance can be temporary (for example intoxication) or permanent (for example learning disability) in nature. If it is temporary, either delaying the mental capacity assessment or reviewing it may be appropriate depending on the urgency of the decision.

Where can the Act be used?

There is no statutory limitation on where the Act can be used (except the Deprivation of Liberty Safeguards which only apply to hospitals or care homes) within England and Wales. Accordingly, the Act could be applied in a person’s own home, hospitals, care homes, supported housing, general practice, dental practices and police stations. In fact, anywhere that a health, social care or financial decision needs to be made on behalf of someone who lacks mental capacity.

•Question: Are prisons covered by the Act?

Yes – all health, social care and financial decisions for people who lack capacity are covered regardless of location. Some exceptions apply for mental health treatment provided to patients detained in hospital under the Mental Health Act, see chapter Mental Health Act 1983 and the Mental Capacity Act 2005. Accordingly, if the criteria for the Mental Capacity Act are met and a decision is required in a prison (for example, because a prisoner is having a medical assessment or treatment) the Act applies.

Which staff can use the Act?

All staff working with people who could lack capacity are affected by the Act. The list is extensive and includes nurses, social workers, care managers, psychologists, dentists, occupational therapists, podiatrists, physiotherapists, domiciliary care workers, hospice staff, care home staff and doctors. In addition, relatives, carers and voluntary services must use the legislation if they provide care to people who lack capacity. Other services such as advocacy and advice organisations will also need to have knowledge of the Act when giving information to clients.

•Question: Can the police use the Act?

Yes – the use of the Act by the police and other groups is examined in the later chapter Using the Mental Capacity Act – Different Services.

Status

The Act’s authority as statute law means that all policies or guidance (General Medical Council, Nursing and Midwifery Council, Health and Care Professions Council, Department of Health or local authorities) must follow its requirements. Any service or person working with someone who lacks capacity must follow the Act and, as with any legislation, there is no excuse for not being sufficiently informed about it. All those making judgements about someone’s mental capacity or making decisions in a person’s best interests should establish the legal basis for their judgements with reference to the Act.

In addition to the Act, there is a statutory Code of Practice that staff are under a duty ‘to have regard to’. See chapter Codes of Practice for further details.

Monitoring

If people have concerns about the use or misuse of powers by attorneys or deputies, this should be reported to the Office of the Public Guardian (see chapter Office of the Public Guardian) for them to investigate. The Court of Protection resolves disputes about the use of the Act and has authority to take action in a number of areas (see chapter Court of Protection).

The health and social care inspectorate bodies for England (Care Quality Commission) and Wales (Healthcare Inspectorate Wales and Care Inspectorate Wales) monitor the legislation. They check that providers are operating within the requirements of the Act and have a specific role to monitor part of the legislation called the Deprivation of Liberty Safeguards (DoLS) (see chapter Care Quality Commission).

Note

The Mental Capacity Act 2005, in common with all legislation, is like a book arranged into a number of parts (chapters) and sections (paragraphs). Each section has a number, and these are referred to in this guide where appropriate.

KEY PARTS OF THE ACT

The Act contains several key parts listed below. Each one has a dedicated chapter in this book.

•Principles – five principles that underpin the entire Act and provide a safeguard for people whose mental capacity is called into question.

•Mental capacity assessment – a standard assessment to check whether a person can make a specific decision at a specific time.

•Best interests decisions – a procedure for others to make decisions on behalf of people who lack mental capacity concerning their care, treatment and/or finances.

•Advance decisions to refuse treatment – allows people with mental capacity to plan ahead and refuse future treatment if they later lose capacity.

•Research – powers and procedures that allow for and safeguard research conducted with people who lack capacity.

•Codes of Practice – two statutory codes; one covers the Act and a further supplementary code, covers the Deprivation of Liberty Safeguards.

•Court of Protection – the court acts as the main arbitrator on disputed and complex decisions concerning the Act.

•Office of the Public Guardian (OPG) – primarily registers and monitors lasting powers of attorney and deputies.

•Payments – rules to guide payments made by others on behalf of people who lack mental capacity.

•Lasting power of attorney (LPA) – allows people with mental capacity to appoint another person (their attorney) to make future care, treatment and/or financial decisions on their behalf if they ever lack capacity to do so themselves.

•Deputies – a person appointed by the Court of Protection to make decisions on behalf of someone who lacks mental capacity.

•Advocacy – independent mental capacity advocates (known by the acronym IMCA) provide a safeguard for the most vulnerable people lacking mental capacity.

•Criminal offence – an offence concerning the ill-treatment or wilful neglect of people who lack mental capacity, which may be punishable by imprisonment.

•Restraint – provision for the lawful restraint of a person who lacks mental capacity. The power is only available if certain criteria are met.

•Deprivation of Liberty Safeguards (DoLS) – the authority to detain people