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The Mental Capacity Act (2005)

The purpose of the Mental Capacity Act (2005) is to uphold an individual’s rights, empower their voice and protect them from harm.

It is every professional’s responsibility: from doctors and nurses, to psychologists, occupational therapists, care home staff and supported living teams.

Who does it apply to?

The Mental Capacity Act (2005) applies to all people in England and Wales aged 16 and over who can’t make some or all decisions for themselves. The ability to understand, retain, weigh up and communicate their decision on the specific matter in question is called ‘Mental Capacity’.

Key principles of the Mental Capacity Act (2005)

  1. An individual must be assumed to have capacity unless it is established that they lack capacity.
  2. An individual must be given all reasonable support to enable capacity.
  3. An individual is not to be treated as unable to make a decision if they are deemed to be making an ‘unwise’ decision. (People with capacity are free to make unwise decisions).
  4. Any act or decision made on behalf of an individual who is established to lack capacity in a specific area, must be done in their Best Interest.
  5. Any act or decision carried out in an individual’s Best Interest must be the least restrictive option, respecting their rights and freedoms at all times.

When should a Mental Capacity Assessment be completed?

If an individual’s capacity to make a specific decision is in reasonable doubt, or if they are unable to make a decision – for whatever reason – then it is a care professional’s responsibility to complete a Mental Capacity Assessment.

While any member of the public can carry out a Mental Capacity Assessment, in the case of complex decisions, or decisions that may involve disputes, or have high-risk consequences, then it is advised to consult a healthcare professional and/or an independent mental capacity assessor as appropriate.

Please note that there are other situations where a Mental Capacity Assessment may be completed, such as to help protect a decision from being challenged, as in the case of making a Will or Testimony. Therefore a Mental Capacity Assessment can help to protect their wishes.

What happens if an individual lacks capacity?

Following a Mental Capacity Assessment, if an individual is deemed to lack capacity for a specific decision, then a Best Interest decision should be made on their behalf. For a small specific decision, this can be made by an appointed decision maker who is usually the individual’s daily carer or care team. This decision should be included in the individual’s care plan and reviewed at regular intervals.

Examples include the support of a healthy diet based on the individual’s known food preferences, or to wear a lap belt when in a moving wheelchair to protect their safety.

For larger, more complex decisions, such as safeguarding, changing residence or medical treatment, a formal meeting with a decision maker and chair should be held. The decision maker may be a healthcare professional for more complex decisions.

What factors need to be considered?

Within the Mental Capacity Act’s Code of Practice (2007) there is a non-exhaustive checklist of factors to consider when making a Best Interest decision. By non-exhaustive, this means that other factors for specific decisions or circumstances may also need to be considered. The checklist is designed to encourage the individual’s participation where possible, while also promoting equality, avoiding discrimination, and taking into account the individual’s known values and beliefs. It also considers relevant people who may need to be consulted, and other considerations such as whether capacity may be regained.

How long can Mental Capacity impairment last for?

An individual’s Mental Capacity can be impaired for any length of time, and is not fixed – it may be impaired for a short period, a long period, or it can fluctuate.

  • Short-term impairment – There are many short term conditions that can cause Mental Capacity impairment. These include: urinary tract infections, delirium, dehydration or the use of alcohol or drugs. Each of these has the potential to significantly impact an individual’s ability to process, comprehend, and retain information. However, they may well regain capacity once the cause has been resolved.

  • Long-term impairment – There are many conditions that can cause cognitive impairment for a longer period. These include brain injuries, cerebral vascular accident / stroke, advanced dementia, high spectrum autism, and others. However, while each of these condition can cause cognitive impairment, this does not mean that they will. As such, each situation should be treated on a case-by-case basis.

  • Fluctuating impairment – At times, an individual’s capacity can fluctuate, especially with conditions such as dementia, where an individual can become more disorientated at a particular time of the day. As such, it is absolutely critical that individuals be given all reasonable support to allow them to make a decision at a time and place where they are deemed to have capacity. If in doubt, please consult a professional in this area, and/or the Court of Protection.