The Mental Capacity Act (MCA) legislation came into force in 2007 to promote and protect the rights of vulnerable people who are unable to make decisions for themselves. It applies from the age of 16 which means that from the age of 16 it should be applied to all decisions being made about people in terms of their Care, Support, Medical Treatment, Education, and all other significant decisions that need to be made about them and for them.
For parents, this means that when your son or daughter reaches the age of 16 this law applies to them regardless of any disability they may have, and it will change how decisions are made. You are no longer the decisionmaker on their behalf, you do, however, continue to have a vital role in supporting them to make decisions where they can, or by providing essential information for best interests decisions made on their behalf if they lack capacity.
The MCA is underpinned by 5 Principles which must always be applied to all assessments and decisions made.
Principle 1: A presumption of Capacity.
Every adult has the right to make his or her own decisions and must be assumed to have capacity to do so unless it is proved otherwise. This means that you cannot assume that someone cannot make a decision for themselves just because they have a particular medical condition or disability.
Principle 2: Individuals being supported to make their own decisions or maximising capacity.
A person must be given all practicable help before anyone treats them as not being able to make their own decisions. This means you should make every effort to encourage and support people to make the decision for themselves. This would include the use of sign language, pictures, experiential learning, and/or communicating in any way that that person would usually communicate. If a lack of capacity is established, it is still important that you involve the person as far as possible in making decisions.
Principle 3: Unwise decisions
People have the right to make decisions that others might regard as unwise or unusual. You cannot treat someone as lacking capacity for this reason. Everyone has their own values, beliefs and preferences which may not be the same as those of other people.
Principle 4: Best Interests
Anything done for or on behalf of a person who lacks mental capacity must be done in their best interests. Acting in someone’s best interests is about following a process and finding out what it is important to them and not just what the decision maker thinks is best for them.
Principle 5: Less Restrictive Option
Someone making a decision or acting on behalf of a person who lacks capacity must consider whether it is possible to decide or act in a way that would interfere less with the person’s rights and freedoms of action, or whether there is a need to decide or act at all. Any intervention should be weighed up in the particular circumstances of the case.
Each decision is specific
Capacity is decision and time specific, so every time a significant decision needs to be made, capacity should be assessed. Young people especially are still learning about life and how to make decisions so it is very likely that their capacity will change. It is good practice to consider capacity for every decision being made. Capacity can fluctuate.
Assessing Capacity
In order to assess capacity, there is essentially a simple two-part test or process which must be applied.
Stage 1:
There has to be an impairment or disturbance to the mind or brain which prevents the person from being able to make the decision they are required to make. That impairment can be permanent or temporary such as a lifelong disability for example Autism or Downs Syndrome or it could be due to illness or drugs or alcohol. The important factor is the link between that impairment and the inability to make a decision. Traditionally this has been considered first before moving onto the next part of the assessment but recently it has become deemed better practice to look at the functional aspect of the assessment first.
Stage 2:
The MCA says that a person is unable to make their own decision if they cannot do one or more of the following four things:
- Understand information given to them
- Retain that information long enough to be able to make the decision
- Weigh up the information available to make the decision
- Communicate their decision – this could be by talking, using sign language or even simple muscle movements such as blinking an eye or squeezing a hand
Failure on any one of those points means that the person lacks capacity for that decision. It is important not to set the bar too high and the person only has to understand the salient points in order to make a decision. To state that someone lacks capacity to be able to make a decision the assessor has to displace that presumption of capacity and be sure that on the balance of probabilities they lack capacity. The responsibly sits with the assessor to prove the lack of capacity and it is not for the person themselves to evidence they have capacity. If the person is unable to make a decision and therefore lacks capacity for the decision, then it needs to be made in their Best Interests.
What is ‘Best Interests’?
The MCA provides a non-exhaustive checklist of factors that decisionmakers must work through in deciding what is in a person’s best interests. Some of the factors to take into consideration are:
- Do not discriminate. Do not make assumptions about someone’s best interests merely on the basis of the person’s age or appearance, condition or any aspect their behaviour
- Take into account all relevant circumstances
- If faced with a particularly difficult or contentious decision, it is recommended that practitioners adopt a ‘balance sheet’ approach
- Will the person regain capacity? If so, can the decision wait?
- Involve the individual as fully as possible
- Consider the individual’s past and present wishes and feelings, and any beliefs and values likely to have a bearing on the decision
- Consult as far and as widely as possible. Parents are a vital part of the consultation process as they are likely to know the young person the best, though teachers, carers, sometimes even older siblings and other family members may also have something very useful to contribute
All best interest decisions will need to be recorded. A best interest decision can only be made from the options that are available to the person (in the same way that if they had capacity)
The decision maker will vary depending on the decision that needs to be made for example if the decision is about medical treatment, then the ultimate decision maker would be the medical practitioner proposing the treatment. If it was about care which the local authority is being asked to fund, then it is likely that they would be the decision maker.
Liberty and care planning
Liberty is important – it is a human right. Liberty is what allows us to live fulfilling lives. We all have a right to live a life that is free from abuse or harm, but we also have the right to live our lives autonomously. The challenge for providers and commissioners is to manage the tension between, on the one hand, promoting people’s rights, and on the other, the duty to protect them from risk. Too much emphasis on rights can lead to a lack of safety. Conversely, a risk-adverse approach can impose unnecessary restrictions on people’s freedom.
Deprivation of Liberty Safeguards (DoLS)
DoLS ensures people who cannot consent to their care arrangements in a care home or hospital are protected if those arrangements deprive them of their liberty. This can also apply to other arrangements for a person’s care and treatment such as a residential school or respite care and even in a person’s own home. The “Acid Test”, following a case heard by the Supreme Court in 2014 gave a definition about what is a deprivation of liberty.
If someone is unable to consent to arrangements for their care and treatment (so they have been assessed as lacking consent to be able to make that decision) and they are under continuous supervision and control and they are not free to leave, then they are deemed to be deprived of their liberty. If that is the case, then there should be a deprivation of liberty safeguard in place which ensures that that vulnerable person has a right of appeal against those arrangements should they so wish.
Due to the very high numbers of people that this applies to many local authorities have been unable to assess everyone who is deprived of their liberty and generally DoLS is recognised as needing reform. The new Liberty Protection Safeguards (LPS) will be replacing DoLS within the next couple of years. A code of practice has been out for consultation and hopefully there will be further news in Winter 2023 about LPS. See the SCIE website for MCA/DoLS and LPS Information
