MENTAL CAPACITY ACT

The Mental Capacity Act

Back to Basics

Empowering people to make decisions for themselves, and protecting them when they cannot, is a key feature of the Mental Capacity Act 2005. Paul Kelly, associate solicitor at Slater and Gordon, discusses the legislation and answers some of the key questions around its powers and impact

What is the Mental Capacity Act 2005 (MCA)?

The MCA was enacted to protect those people who lack capacity to make decisions for themselves and it provides the legal framework for acting and making decisions on their behalf. The MCA is designed to empower people to make decisions for themselves where possible, and protects people who lack capacity by placing individuals at the centre of the decisionmaking process. The MCA introduced the Court of Protection, a court with the authority to make decisions on behalf of someone who lacks capacity. These decisions can include placing restrictions on a person’s liberty, granting a power of attorney or appointing a deputy to manage the person’s affairs.

Who does the MCA apply to?

The MCA applies to everyone involved in the treatment or care of people aged over 16 in England and Wales, including social workers, therapists and doctors. These professions are under a duty to know how to apply the MCA in their role.

What are the key principles of the MCA?

The MCA contains 5 key principles: 1. A person must be assumed to have capacity unless it is established otherwise. 2. A person must not be treated as unable to make a decision unless all practicable steps to help them to do so have been taken. 3. A person is not to be treated as unable to make a decision just because a decision is unwise. 4. A decision made in accordance with the MCA must be in the person’s best interests. 5. Before a decision is made, it must be considered if the decision can be made in a way which is least restrictive of the person’s rights.

How do you know if a person lacks capacity?

The MCA confirms in legislation that anyone aged 16 or over should be presumed to have capacity unless it is shown otherwise.

A person may lack capacity due to number of reasons including a brain injury, mental health problem, dementia, a learning disability or substance misuse. A person may also only lack capacity at certain times or in respect of certain decisions. Under the MCA you need to satisfy both stages of the two-stage functional test to establish a lack of capacity: Stage 1) A person lacks capacity if at the material time they are unable to make a decision for themselves because of a disturbance or impairment of the mind or brain. The disturbance can be permanent or temporary; and Stage 2) A person is unable to make a decision for themselves if they are unable to: A) Understand the information relevant to the decision; B) Retain that information; C) Use or weigh up that information in the process of making the decision; or D) Communicate his decision. The assessment must be made on the balance of probabilities, i.e. is it more likely than not that the person lacks capacity? This should be recorded when making your determination.

Where it is decided that someone lacks capacity to make a decision, how do you make a best interest decision?

In accordance with the five principles, where a person lacks capacity, any decision made needs to be in their best interests. Best interest decisions will be different in every case, as what is in one person’s best interests may not be in another’s. The MCA states that when making a determination on best interests it should not merely be on the basis of a person’s age, appearance or a condition/behaviour of theirs. The MCA says that you should encourage the person to take part in the decision, get their views and identify the relevant circumstances. You should also assess whether the person may regain capacity and if the decision could be postponed until such time. In making a decision it is important to consult those involved with the person such as family members, carers and clinicians. The MCA excludes certain decisions from being made as they are too personal or governed by other legislation such as, consenting to marriage or divorce, voting, having sexual relations or consenting to a child being placed for adoption.

What is the Court of Protection?

The MCA created a new superior court to be known as the Court of Protection (“COP”). The COP oversees the implementation of the MCA and the court’s authority covers a person’s welfare decisions as well as matters in relation to their property and affairs. These decisions can cover everything from if a person should buy a property, to whether a person should have their medical treatment withdrawn and everything in between. The court has the power to make a declaration that someone lacks capacity and has the power to appoint deputies (see below). The court is generally split into two branches: Welfare; and Property and Affairs. In respect of welfare, the court has the power to decide where a person is to live, who they have contact with (or not) and they can grant or refuse consent to the carrying out of health care treatment. The property and affairs branch has the power to control and manage a person’s property including the sale, or gift of their property. They have the power to acquire property in a person’s name, carry out a trade or business, discharge debts and they can execute a will on a person’s behalf where they lack testamentary capacity. The COP will also make decisions on any disputes between parties over what is in a person’s best interests. Cases are often brought before the court by family members and professionals alike.

Can a person appoint someone to make decisions on their behalf?

The MCA introduced a new form of Power of Attorney known as a Lasting Power of Attorney (“LPA”). An LPA allows another person or group of people to make decisions on a person’s behalf. The person granting the LPA must have capacity to do so. An LPA must be registered, and the attorneys must make sure that the MCA’s statutory principles are followed. LPAs can be for welfare or property and affairs although you are required to apply for both individually.

If an LPA is not suitable is there another option?

Where a person lacks capacity to make an LPA, the Court of Protection can appoint a deputy. The deputy can be an individual or two or more people. If a person’s estate is particularly large, the court can appoint a professional deputy. The deputy will be given certain delegated authorities from the court to make decisions for the person. Such authorities may allow the deputy to take possession and control of the person’s finances and property, authority to purchase property or invest their funds, as well as authority to make gifts. When a deputy is appointed, they stand in the shoes of the person who lacks capacity and have authority (subject to the court order) to progress matters on their behalf. Like LPA’s, deputyship orders can be in respect of welfare or property and affairs.

How does the MCA apply to someone who is deprived of their liberty?

The Deprivation of Liberty Safeguards (DoLs) are an amendment to the MCA. DoLs make sure that people who do not have the capacity to consent to their care arrangements are protected if the arrangements deprive them of their liberty. Where a person is being deprived of their liberty this is required to be authorised. If the person lives in a care home or hospital the local authority can authorise the deprivation of liberty, this is known as a “standard authorisation”. In other circumstances the Court of Protection need to authorise the DoL. You also need to apply to the COP if you want to challenge an authorisation where it may be that it was not authorised properly, is not in the person’s best interests or if they have capacity to decide themselves on their treatment or placement.

How does an individual have their voice heard in proceedings?

The MCA introduced Independent Mental Capacity Advocates or “IMCA’s” as a statutory safeguard where a person lacks capacity to make some important decisions. IMCA’s can be appointed where the person concerned does not have family or friends to represent them.

What are the consequences of mistreating someone who lacks capacity?

The MCA made it a criminal offence to ill-treat or wilfully neglect a person who lacks capacity, which is punishable by a prison sentence of 5 years, a fine or both.

Where can I read more?

The MCA Code of Practice should be read in conjunction with the MCA as it provides guidance to those working with people who lack capacity and it explains how the MCA is applied on a dayto-day basis.