The Mental Capacity Act (MCA)
The Mental Capacity Act 2005 (MCA) provides a framework to empower and protect people who may lack capacity to make some decisions for themselves.
What is mental capacity?
Mental capacity is the ability to make a decision and understand the consequences of it. A person’s ability to make a decision depends on what the decision is and what else is happening in their at the time. This is why a capacity assessment should only ever relate to a particular decision at a particular time.
What is the point of doing a capacity assessment?
The purpose of any capacity assessment is not to judge the decision a person makes. It’s to determine whether a person is able to make the decision. To be able to make a decision you have to be able to:
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understand the information relevant to the decision
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retain that information (if only for a short amount of time)
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use or weigh up that information as part of making the decision, or
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communicate the decision (whether by talking, using sign language or any other means).
Are any decisions not covered by the Mental Capacity Act?
There are certain decisions that cannot be made for another person under MCA law. This is because the decision is either so personal to the individual concerned, or because it is governed by other legislation. Decisions that cannot be made under MCA law include:
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consenting to marriage or a civil partnership
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consenting to sex
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consenting to a child being placed for adoption
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voting at an election.
What are the 5 key principles?
1. We must begin by assuming that people have capacity
You should never assume that just because a person has a learning disability, they lack capacity to make decisions. Capacity changes over time for us all. If a person is unwell or grieving, their ability to make decisions (particularly big decisions such as moving house) is likely to be affected. Where possible, major decisions should be postponed until the person’s circumstances and ability to make decisions improves.
2. People must be supported to make decisions
Information should be given in a way that makes sense to the person. Easy read is a common approach to make information accessible to a person with a learning disability. A person may also need a family carer or support worker to help them feel at ease during the assessment.
3. Unwise decisions do not necessarily mean a lack of capacity
A person has a right to make an unwise decision. The purpose of a capacity assessment is to determine a person’s ability to make the decision, not to make a value judgement on their decision.
4. Decisions must be taken in a person’s best interests
This is a difficult concept. It means putting yourself in the person’s shoes. Past decisions and knowledge of what is important to the person are crucial considerations during this process. Everyone involved should imagine what the person would choose if they did have capacity.
5. Consider whether a decision can be made in a way that is less restrictive of a person’s freedom
Take, for example, an individual who doesn’t want to move out of their home even though their mobility has recently deteriorated. A recent capacity assessment found that even with support the individual lacked the capacity to understand their changing health needs and their ability to manage stairs.
The least restrictive option would be to adapt the home by fitting a stair lift or moving the person downstairs. The most restrictive option would be to decide that the person should move home. The least restrictive option should always be chosen where possible.