The Mental Capacity Act (2005) is built around five key principles. To ensure best practice, it is useful to attach a copy of the five principles to any Mental Capacity Assessment, to be reviewed prior to the assessment in order to ensure the assessment is only completed if necessary and that appropriate support is put in place, while also respecting the individual and their Rights
Principle 1: Presumption of Capacity
By presuming capacity, we are respecting the individual’s rights to make a decision for themselves. We should never assume that because a person has a cognitive impairment, that they are unable to make a decision that will impact on their daily life.
If we have reasonable doubt that their impairment is affecting their ability to make a particular decision, it is our responsibility to demonstrate their Capacity or Incapacity for this specific decision.
It is important to note here that if a person is suspected to be under duress and/or their decision-making impacted by other people, then this does not fall under the Mental Capacity Act (2005). Rather, it should be raised via other channels, including multi-disciplinary meetings with appropriate teams, and safeguarding if necessary.
Principle 2: Individuals have the right to be supported to make their own decision(s)
This refers to all reasonable adjustments to support understanding, enable retention, facilitate communication and weigh-up a specific decision. To make assessments accessible and inclusive, we should carefully consider our approach to engagement, whether the user needs to be supported with assisted or augmentative communication aids, and maybe even consider including breaks in the assessment to make the process easier for them.
Other factors to consider include ensuring the assessment is conducted at the best time of day and that it is held in a quiet, low-stimulus environment to minimise distractions. If communication aids are required, these should be prepared in advance, and the format of questions adjusted based on the service user’s needs – for example, if braille resources are required, or even a translator.
This list is by no means exhaustive, and will vary very much on a case-by-case basis.
It is important to bear in mind here that the steps we take to support capacity should in no way lead the individual towards a particular outcome. The service user should be provided with all available options and should not be influenced by the preference of others.
Principle 3: Individuals have the right to make ‘unwise’ decisions
The Mental Capacity Act is designed to uphold and promote a person’s rights. Therefore, if they are judged to have capacity to make a specific decision, then it is not our role to judge an individual’s choices, even if we perceive them to be unwise.
For example, if a person has physical health challenges and has had several falls at home, the ‘preferred’ option might be to suggest they move to a supported living arrangement. However, if they are able to demonstrate that they have capacity to make the decision to stay living in their own home, then they have every right to make this decision for themselves, even if we might consider it unwise.
In this case, then no Best Interest Decision is required. Equally, someone with Lasting Power of Attorney (LPA) would not be able to overrule their decision and act on their behalf.
Principle 4: If a person has been found to lack capacity for a specific decision, then any decision made on their behalf must be in their Best Interest
A Best Interest Decision must follow a specific process for all complex decisions, such as treatment, accommodation, care etc. It should involve relevant health care professionals as well as family members, those granted LPA, and others. In the Best Interest meeting, the group should consider all the options for the individual, weighing up what the person would want, what the impact could be with each decision and what the Least Restrictive Options might be. The meeting should then lead to a join conclusion as to the best way forward.
If there is any disagreement, then further meetings should be held in order to reach a mutually agreed decision on what would constitute the individual’s Best Interest. If no Best Interest Decision can be reached, then the case should proceed to the Court of Protection.
Principle 5: If a person has been found to lack capacity for a specific decision, then any decision made on their behalf must be the Least Restrictive Option
In the course of decision-making, we should never make a ‘blanket decision’ that applies to everyone. Not only does a blanket decision presume that ‘one size fits all’, but it also removed aspects of person-centred care and may even impede their Article 5 rights to Liberty.
For example, if a person is walking somewhere purposefully and seeking to leave, then it can be easy to assume that they ‘must’ need medication in order to calm their presentation. However, this is quite a serious presumption to make, and really the purpose of their actions should be explored. It may be for example that they require the toilet, that they are seeking out a family member, that they are completing a habitual pattern from the past or that they are in some way either under- or over-stimulated.
It is therefore really important that each case is treated independently, and that all steps are taken to get to the bottom of why someone is behaving in a particular way. This then means that appropriate and proportionate support can be provided in a person-centred way, ensuring medication is the last resort as a form of chemical restraint. Other examples may include access to kitchen facilities to make one’s own drinks; access to smoke or vape; support for personal care; medication content; observations and monitoring etc. While each case will present its own unique challenges, any decision made on behalf of a vulnerable person should be the least restrictive option. Safe access to the community should be available for all.