Mental Capacity Act 2005

Remember the Five Principles of the Act:

1. Assume the person has ‘capacity’unless you have a reasonable belief capacity may be impaired.
2. Do not treat the person as unable to make a decision unless all possible steps to help them have been taken.
3. An unwise decision does not mean the person is unable to make a decision.
4. An act or decision on behalf of a person who lacks capacity must be in their best interests.
5. An act or decision on behalf of a person who lacks capacity must aim to be least restrictive

Help the person decide for themselves (ie: enable capacity)

• Define clearly the specific decision that needs to be made and the time it needs to be made. Remember! People may be able to make some decisions but not others.
• Be person-centred - eg: meet at a time and place that’s best for person, to help them feel at ease.
• Provide information relevant to the decision, including information about any choices or alternatives. (Take care that the information threshold is appropriate.)
• Use a method of communication or language that is most suited to the person - not just the written or spoken word - such as accessible language, pictures or an interpreter.
• Involve others who can support the person to understand information and make a decision.
• Consider if you can delay the decision until the person regains capacity

• Identify the decision-maker: the person proposing the decision &/or taking the action (unless decision is within the authority of a Lasting Power of Attorney (LPA), Court Deputy (CAD), Court Order or Advanced Decision to Refuse Treatment(ADRT).
• Explain to all parties that the Mental Capacity Act must be followed.
• Refer to the Independent Mental Capacity Advocacy (IMCA) Service or generic advocacy.

(The assessment should be recorded to evidence how the conclusion has been reached.)

Stage 1 (DIAGNOSTIC TEST)

Does the person have a permanent or temporary condition that is affecting the functioning of their mind or brain?

A condition could include:

• Mental illness;
• Dementia;
• Significant learning disabilities;
• Effects of brain damage;
• Physical or medical conditions that cause confusion, drowsiness or loss of consciousness, delirium;
• Head injury including stroke;
• Symptoms of alcohol or drug use; • No formal diagnosis, but signs of mental impairment are evident.

If the impairment is temporary the decision may be deferred (unless urgent)

Stage 2 (FUNCTIONAL TEST)

If so, is it sufficient to prevent the person from making the particular decision at the time it needs to be made?

Follow the four points below:

• Does the person understand the information relevant to the decision that needs to be made?
• Are they able to retain the information long enough to make the decision?
• Can they weigh up this information & use it to make a decision?
• Can they communicate their decision in any way?

If the answer is ‘no’ to any of the above, then there is a reasonable belief that the person cannot make the decision for themselves: they lack capacity

(The best interests process should be recorded as evidence of lawful decision-making.)

• Encourage the person to participate.
• Identify all relevant circumstances.
• Find out the person’s views, past & present – eg: are there any written statements, or advanced decisions to refuse treatment (ADRT)?
• Avoid discrimination.
• Assess whether the person might regain capacity.
• If the decision concerns life-sustaining treatment do not make assumptions about the person’s quality of life.
• Consult others, eg: other family members, friends, paid staff, IMCA, LPA, CAD.
• Avoid restricting the person’s rights.
• Take all of this into account – eg: What are the most important factors?

And Have you weighed the benefits v burdens of each option?

(Evidence that restraint or restrictions meet criteria below should be recorded.)

Restraint or restrictions can be used, but only if:

• The person lacks capacity to consent & it is in their best interests to protect them from harm, and:
• Restraint /restrictions are necessary to prevent harm to the person, and are a proportionate response to the likelihood and severity of harm.

Notes:

• A person can only be deprived of liberty under the Deprivation of Liberty Safeguards (DoLS), the Mental Health Act, or a court order.
• Contact with others cannot be prevented or restricted - eg: under a Safeguarding Plan - unless agreed by all parties, or under short-term DoLS or a court order.