The Mental Capacity Act 2005 sets out a statutory framework for making decisions on behalf of adults, and in certain circumstances, when making decisions for young people who are 16 or 17 years old.  The Act sets out safeguards to empower and protect a person assessed as lacking mental capacity.  A lack of mental capacity could be due to: a stroke or brain injury, a mental health problem, dementia, a learning disability, confusion, drowsiness or unconsciousness because of an illness or the treatment for it, and substance misuse.  Mental incapacity may be permanent or temporary and can change in severity and level.

The term ‘Mental Capacity’ means someone’s ability to make decisions for themselves.  When someone does not have mental capacity, another person must make decisions for them.  This can have serious implications for personal freedom.  There are different kinds of capacity depending on the kind of decision that needs to be made.  For example, capacity to consent to medical treatment, to make a will, decide where to live, how to spend money or sell property.  A person may have capacity to make some decisions and not others.

Principles of the Act

• Assume a person has capacity unless proved otherwise
• Someone cannot be treated as lacking capacity until all practical steps have been taken to help them to make their own decisions.  This could include help from a speech therapist, using sign language, having information provided in different formats, or giving treatment which will improve their mental condition. 
•  Just because someone wants to do something which most people consider unwise, strange or eccentric, this does not mean they lack capacity.
• Everything done for a person who lacks capacity must be in their best interests.  
•  Any interference in someone’s right to make decisions must take the form of the least restrictive option, and respect their basic rights and freedoms.

Anyone involved in making decisions for other people who may lack capacity must abide by these principles.  They must be able to show they have made efforts to enable the person to make and express their decisions and that they reasonably believed the decisions they make on someone else were in the person’s best interest.

How does the Act fit with the Mental Health Act 1983?

Treatment delivered in accordance with the Mental Health Act is excluded from the scope of the Mental Capacity Act.  Therefore, just because someone is detained in hospital under the Mental Health Act, it does not mean they are not entitled to make any decisions for themselves.

Who does the Act affect?

The Act affects the rights and responsibilities of adults, and 16 and 17 year olds, with an illness or disability which affects their mental functioning, or their ability to express their wishes, and those who look after them whether paid or unpaid.

What will be considered in deciding whether someone has capacity?

The Act sets out a single clear test for assessing whether a person lacks capacity to take a particular decision at a particular time. It is a "decision-specific" test. No one can be labelled 'incapable' as a result of a particular medical condition or diagnosis.  Lack of capacity cannot be established merely by reference to a person's age, appearance, or any condition or aspect of a person's behaviour.

Incapacity might be short term or long term and could include the effects of drug or alcohol misuse, mental illness, dementia, brain damage or a genetic condition.  People can loose their capacity temporarily; if an important decision has to be made and can be put off until the person is better, then this is what should happen.

If someone gets better they will regain their capacity. 

How the Mental Capacity Act affect Carers and Care Staff.

The Act will have implications for people who care for others, whether as a paid job, volunteer, or unpaid family carer.  The main principles must inform the actions of Carers as well as professional staff.  Carers and staff should not be unduly worried about the Act as it only confirms what is already sensible good practice, however they may want to be aware of their position under the new law.

Carers and care staff often have to make many small decisions on behalf of someone else on a daily basis e.g. to decide to get dressed, what to eat, to have a bath, or to take medication.  If someone else were to challenge their right to do these things, under section 5 of the Mental Capacity Act a family carer need only show he/she reasonably believed that the person lacked capacity to make a certain decision, and that they believed they were acting in the persons best interests.

How does the Act specifically affect family and friends who care for a disabled adult?

• Carers should normally be consulted when a decision is being made about capacity, as they usually know the person very well and have much useful information to contribute to the decision.  S.4 (7) of the Act states that anyone deciding whether someone has capacity or not, must consult anyone named by the service user as someone to be consulted on the matters in question, and any deputy appointed by the court should also be consulted, where practicable and appropriate.
•  Where there is a conflict between family members or between family carers and professional staff about what is in someone’s best interests, anyone can seek a Declaration from the Court of Protection.  However every effort should first be made to reach a consensus between everyone involved, including the person who may lack capacity.  The Court is likely only to take on cases where the decisions at stake are very serious.  Otherwise an Independent Advocate may appropriately be involved.

How does the Act affect professionals or paid carers?

• A professional should be able to show that they have taken reasonable steps to see if the person lacked capacity and that they are acting in the person’s best interests.
• Community Care Assessments, Care plans and records should reflect this consideration – this is not stated in the Act but is good practice.  Clearly not every small decision can be recorded in this way on a daily basis, but larger decisions, and the general principles on which decisions are made in the individual’s case, should be recorded.  For example, if there is a need to use restraint, this should be very clearly set out in the care plan with reasons.  It is essential that Mental Capacity Assessments and Best Interest decisions are fully recorded on both electronic and paper systems relating to the individual person.  The process undertaken, the people involved in the process, the different actions to ensure as far as possible the person being assessed is fully involved and supported, need to be documented together with outcomes, decisions made and actions taken.

Other information requiring recording is:

•  Advance Directives
• Preferences expressed by the person
• Fluctuating mental capacity
• Strategies which assist the person with decision making.

The Act provides for Independent Advocates to be appointed when there is any doubt about the person’s real wishes.  Professionals should consider whether it would be appropriate to initiate the appointment of an independent advocate.  The Independent Advocates will become operational on 1st April 2007. 

Bath and North East Somerset Council has commissioned Bath Mind as their Independent Mental Capacity Advocacy Service.  For further information please contact: 

Sue Sherrin
Bath Mind
13 Abbey Church Yard
Bath BA1 1LY
Tel. 01225 316330
E-mail: bathmindimca@btconnect.com

Website:  http://www.bathmindimca.org.uk/

Property Matters:

• Appointeeships:  Some carers/relatives have an appointeeship under the Social Security regulations to claim benefits on behalf of a person lacking capacity, and to use the money on the persons behalf.  These arrangements can continue.
• Paying for necessary goods and services etc:  staff in care homes and informal carers frequently buy small items on behalf of residents who are unable to do this for themselves.  For example, if the person has no relatives living nearby, staff sometimes buy toiletries, clothing, cigarettes or even alcoholic drink on behalf of the resident, using cash given to them by the resident or taken from a personal allowance if this is administrated by the home,  of course if the resident has capacity there is no issue.  If the resident does not have capacity, this is still permitted under the Act subject to the principles above.  The test is, are the goods necessary and in the persons best interest
•  A carer cannot make arrangements for goods or services to be supplied to a person lacking capacity if this conflicts with a decision made by someone who has formal powers over the person’s money and property.  If the person with the formal powers e.g. a Lasting Power of Attorney, makes decisions about spending which are not in the persons best interests, they could for example, be challenged by a family member by making an application to the Court of Protection for a final decision.

Use of restraint

By restraint we mean physically stopping someone from moving about as they wish, or confining them in some physical way.  All steps should be taken to defuse the situation or distract individuals where they may be at risk, however, restraint can be justified in certain circumstances under the Act, but only: 

If the person taking the action reasonably believes that it is necessary to do an act which involves restraint in order to prevent harm to the person lacking capacity, and

The act of restraint must be proportional to the likelihood of the person suffering harm, and

Only the minimum of force for the shortest possible duration is permissible.

Example of legal restraint:  Fred has dementia.  He had become incontinent of faeces and wears pads.  He does not like the pads being changes and becomes distressed and can lash out when this is carried out.  Changing the pads is necessary to prevent harm, otherwise his skin will break down.  Other ways of managing his incontinence has been tried, for example he has been referred to the District Nurse and had a continence assessment.  It is necessary for one staff to gently restrain his hands for a few seconds while another changes the pad.  This is minimum force for the minimum duration, to prevent harm and is in Fred’s best interests, therefore it is legal.

The Act deals with two situations where a designated decision-maker can act on behalf of someone who lacks capacity

• Lasting powers of attorney (LPAs) - The Act allows a person to appoint someone to act on their behalf if they should lose capacity in the future. This is like the current Enduring Power of Attorney (EPA), but the Act also allows people to let an attorney make health and welfare decisions as well as decisions regarding financial matters. 
• Court appointed deputies - The Act provides for a system of court appointed deputies to replace the current system of receivership in the Court of Protection. Deputies will be able to take decisions on welfare, healthcare and financial matters as authorised by the Court but will not be able to refuse consent to life-sustaining treatment. They will only be appointed if the Court cannot make a one-off decision to resolve the issues.

The Act creates two new public bodies to support the statutory framework:

• A new Court of Protection - The new Court will have jurisdiction relating to the whole Act and will make the final decisions for capacity matters. It will have its own procedures and nominated judges. 
• A new Public Guardian - The Public Guardian and his/her staff will be the registering authority for LPAs and deputies. They will supervise deputies appointed by the Court and provide information to help the Court make decisions. They will also work together with other agencies, such as the police and social services, to respond to any concerns raised about the way in which an attorney or deputy is operating.

 There are also three further key provisions to protect vulnerable people:

• Independent Mental Capacity Advocate (IMCA) An IMCA is someone appointed to support a person who lacks capacity but has no one to speak for them. The IMCA makes representations about the person's wishes, feelings, beliefs and values, at the same time as bringing to the attention of the decision-maker all factors that are relevant to the decision. The IMCA can challenge the decision-maker on behalf of the person lacking capacity if necessary.
• Advance decisions to refuse treatment - Statutory rules with clear safeguards confirm that people may make a decision in advance to refuse treatment if they should lose capacity in the future. The decision must be in writing, signed and witnessed. In addition, there must be an express statement that the decision stands "even if life is at risk".
•  A criminal offence - The Bill introduces a new criminal offence of ill treatment or neglect of a person who lacks capacity. A person found guilty of such an offence may be liable to imprisonment for a term of up to five years.

Research involving people who may lack capacity

The MCA sets out a clear legal framework for many types of research involving people who lack capacity to consent to taking part in such research.  The MCA has introduced a number of safeguards to protect people taking part in such research.  Anyone setting up or carrying out such research will need to make sure the research complies with the provisions set out in the Act and will need to follow the guidance given in the MCA Code of Practice. 

You can find more information about the Mental Capacity Act 2005, by logging onto the Department Of Health Website:

http://www.dca.gov.uk/legal-policy/mental-capacity/publications.htm

and by accessing the links on the right of this web page, or by contacting:

Dawn Gillard

Strategic Planning Officer for The Mental Capacity Act 2005, Adult Care & Health Services, PO Box 3343, Bath  BA1 2ZH  

Tel  01225 477821    Fax 01225 396489

E-mail: dawn_gillard@bathnes.gov.uk