The Mental Capacity Act 2005
The Mental Capacity Act (MCA) is the law created to protect and empower ’individuals who lack capacity’ to make their own decisions about their care and treatment. It applies to people aged 16 and over.
The MCA helps to protect vulnerable people who lack mental capacity and to ensure that decisions are made in their best interests.
The MCA Code of Practice provides guidance to professionals and paid carers who have a legal duty to adhere to it.
https://www.gov.uk/government/publications/mental-capacity-act-code-of-practice
What does ‘mental capacity’ mean?
Having mental capacity means that you are able to make an informed decision for yourself.
It may be that you need to make a decision about your treatment and/ or future care due to changes in your health, or you may be a relative or carer for someone who needs support to make decisions about what happens to them in the future.
Assessing mental capacity
It is up to a health or social care professional to seek your consent before they begin any of your care or treatment. If a health or social care professional has any doubts regarding your capacity to make a decision about your care or treatment, they have to test it.
Your capacity to make a decision is not automatically determined by your age, your appearance, your behaviour or any condition that you may have been diagnosed with, such as a learning disability. Each person must be assessed individually.
A person will be found to lack capacity if at the time they are making a decision they are unable to do one or more of the following things:
- Understand the information
- Retain the Information
- Weigh up and use the information
- Communicate their decision
The assessment will also look to see if your lack of capacity is a result of an ’impairment or disturbance in the brain or mind’. This may be due to an illness or other things such as alcohol or drug use.
What happens if I cannot make my own decisions?
If people are found to ‘lack capacity’ it may be that others will need to make a ‘best interest’ decision for them.
The MCA sets out a checklist that must be followed to ensure that decisions are made in your best interests.
If you have a Lasting Power of Attorney (LPA) covering this matter then the person, or people, appointed by the LPA will decide. If you haven’t made plans about this in advance, then the health or social care professional will have to decide what should happen in your best interests.
Lasting Power of Attorney
An LPA allows you to nominate an individual to decide what is in your best interest should you lose capacity in the future. You can nominate them with regards to:
- Personal Welfare
- Property and Affairs
Further advice about LPA can be found at www.gov.uk/power-of-attorney/overview
Advance Decisions to refuse treatment (ADRT)
Anyone over the age of 18 can have an ADRT. This allows you to specify any medical treatment that you do not want should you lack the capacity to decide this in the future.
If your ADRT is for ‘life-sustaining treatment’ there are certain rules to follow. It must:
- be in writing
- state that it applies even if your life is at risk
- be signed by you in front of a witness (or in front of you by someone else that you appoint)
- be signed by the witness in front of you.
You can withdraw your ADRT at any time.
In an emergency
Care and treatment will be given in your best interests if you lack capacity and an LPA or ADRT has not been identified.
Advocacy
It may be that an Independent Mental Capacity Advocate (IMCA) will be required to help with the decision making if there are no family or friends who it is appropriate to consult with during the decision-making process.
Your Voice Counts provides advocacy services in Gateshead: www.yvc.org.uk