A rough guide to the Mental Capacity Act 2005

I’ve been working on a short plain English guide to the Mental Capacity Act 2005 to give to participants in my research on the Act, and posted a version here. Unfortunately, for reasons beyond my technical capabilities, some people can’t download it, so here’s an HTML version. Feel free to share, but do give me feedback if you can think of improvements that could be made.  I’m planning to develop an easy to read guide as well, so tips for that much appreciated.

What is the Mental Capacity Act 2005?

The Mental Capacity Act 2005 is a law in England and Wales that says when people can make decisions for themselves, and when others can make decisions for them.  It can potentially affect anyone who has problems making decisions, including temporary problems such as concussion, but it mainly affects people with disabilities such as learning disabilities, dementia, brain injury and people with mental health problems. It applies to people aged 16 and over.

What is mental capacity?

The law says that adults who have “mental capacity” can make decisions for themselves. Mental capacity means understanding information about decisions, being able to remember it long enough to make a decision, and weighing up the pros and cons of decisions.  Mental capacity also means being able to communicate a decision.

The law starts by assuming that everyone has mental capacity, unless it is shown (through an assessment of mental incapacity) that they do not.  The law also says that people should not assume that people lack mental capacity, just because they have a disability or because they appear or behave in a particular way.

Mental capacity is ‘decision specific’ – a person can have mental capacity to make some decisions but not others. It is also time specific – it can change over time. This means that a person’s mental capacity to make a particular decision should be assessed at the time the decision has to be made.  If a decision can be deferred until a later point when the person can make the decision in the future, then it should be.

The law also says that people should be given support to make decisions for themselves whenever ‘reasonably practicable’.  Support to make a decision could take many forms, including providing information in an accessible format, providing education or training on a topic, having access to trusted friends, family or specialist supporters to help someone access information and talk through decisions, or referrals to specialist services such as speech and language therapy or talking therapies to address any issues that may make decision making harder.

Best interests decisions

The law says that when people do not have mental capacity, other people can make decisions for them.  These decisions must be in their best interests.  People making best interests decisions must talk to the person about their wishes, feelings, values and beliefs, and ask them what they want.  They must also talk to others involved in caring for the person.  They must consider the options that give the person the greatest rights and freedoms.

However, a best interests decision may not always reflect what the person wants, or what those close to them want. The person’s own point of view is very important, but the Act does not give it priority above other considerations.

Who makes best interests decisions?

The law on who makes best interests decisions is complicated. Lots of people assume it is family members, but this is not always true.  For major financial decisions, such as managing a person’s money for them or selling their house, people need special permission.  They can get this if the person made a Lasting Power of Attorney when they had mental capacity. This is a document that gives a named individual (or individuals) special authority to make legal decisions on the person’s behalf or about them.  They can also get this special authority from the Court of Protection (called a ‘deputyship’).

For decisions about health, welfare and care, best interests decisions must usually be made by the person or organisation providing the care or treatment.  For example, doctors will usually be responsible for making best interests decisions about medical treatment, social workers will usually be responsible for making decisions about the provision of local authority funded social care, and family carers would be responsible for best interests decisions about any care they provide.

Lasting Powers of Attorney can also be made for health and welfare decisions if the person has the capacity to do so.  It is also possible for families or others to apply to be a ‘deputy’ to make decisions about health and welfare on behalf of a person who lacks mental capacity, but health and welfare deputyships are rare and can be very expensive to make.

What about disagreements?

If people disagree about whether a person has mental capacity or what is in their best interests, then the MCA Code of Practice says that they should talk to each other to try to sort it out. Sometimes it might be helpful to involve an independent person, such as an advocate.  Really serious disagreements can be resolved by the Court of Protection.

What are the ‘deprivation of liberty safeguards’

The deprivation of liberty safeguards (known as the ‘DoLS’) were added to the Mental Capacity Act 2005 to protect people’s human rights when they are deprived of their liberty in health and social care.  A person is deprived of their liberty if they are subject to ‘continuous supervision and control’ and they are not free to leave the place where they live.  This affects a lot of people with conditions such as dementia, learning disabilities, brain injuries and mental health problems.

Although the name sounds bad, the law was intended to help people who are deprived of their liberty and their families.  It was created because of a case when a person with autism was deprived of his liberty in a hospital and his family and carers could not get him out again.  The safeguards include having independent assessments of mental capacity and best interests, getting help from an independent advocate, and legal aid to go to the Court of Protection if people disagree.

Advance planning

People who have the mental capacity to make the decision can make an ‘advance decision refusing medical treatment’ if they want to refuse consent to particular medical treatments at some point in the future when they might lack mental capacity. They can also make Lasting Powers of Attorney specifying who they want to make decisions on their behalf if they lose mental capacity in the future. Anyone can make an ‘advance statement’ about their wishes, feelings, values and beliefs; people making best interests decisions about the person must consider this but do not have to follow it.

What do people say about the Mental Capacity Act 2005?

In 2014 the House of Lords wrote a report on the Mental Capacity Act, and they said that it was very popular and had an ’empowering ethos’, but had not been well implemented. However, some people think the Act is not very ’empowering’ for disabled people. Some disability rights campaigners criticise mental capacity assessments and best interests decisions and say they are discriminatory and violate people’s human rights. The Act is often criticised in the tabloid media because it has established the Court of Protection, and the media are restricted in what they can write about the cases that it hears. The deprivation of liberty safeguards have been very heavily criticised, and the Law Commission has proposed changes to the law that would simplify the process.  It has also recommended changes that would place a stronger emphasis on the person’s wishes and feelings in best interests decisions, and a new framework for supported decision making. The government is considering these proposals but has not yet consulted on them.  My research is about why some people think that the Act is ’empowering’ and other people do not.

Where can I find out more?

General resources

The Social Care Institute for Excellence has an excellent online directory of resources on the Mental Capacity Act 2005:

http://www.scie.org.uk/mca/

The NHS has a webpage on the Mental Capacity Act:

http://www.nhs.uk/Conditions/social-care-and-support-guide/Pages/mental-capacity.aspx

Buckinghamshire County Council have set up AssessRight to help take people through the steps of mental capacity assessment:

http://www.assessright.co.uk/

The Alzheimer’s Society has a webpage on the Mental Capacity Act, including an audio-factsheet:

https://www.alzheimers.org.uk/info/20032/legal_and_financial/127/mental_capacity_act

Age UK has a webpage on dementia and the Mental Capacity Act:

http://www.ageuk.org.uk/professional-resources-home/policy/care/dementia-and-mental-capacity/

Help and advice lines

Some organisations also offer helplines that may be able to give some advice on any issues about the Mental Capacity Act 2005.

Mencap Direct is a free help and advice line:

0808 808 1111 from 9am to 5.30pm, Monday to Friday or email: helpline@mencap.org.uk

Mind offers a ‘Legal Line’ with  legal information and general advice on mental health related law covering mental health, mental capacity, human rights and community care issues. Open between 9am and 6pm Monday to Friday:

0300 466 6463 and legal@mind.org.uk.

Advance planning

Compassion in Dying have useful information and a helpline on end of life decision making and advance planning:

https://compassionindying.org.uk

Age UK have resources on making Powers of Attorney:

http://www.ageuk.org.uk/money-matters/legal-issues/powers-of-attorney/

Court of Protection

The government’s Court of Protection webpage explains how to apply to the Court of Protection:

https://www.gov.uk/courts-tribunals/court-of-protection

The Court of Protection handbook (and webpage) is a very useful resource for anyone involved in Court of Protection proceedings:

https://courtofprotectionhandbook.com/

Complaints and regulators

If you are concerned that a local authority, NHS provider or care provider has not complied with the Mental Capacity Act, you can make a complaint to that organisation, or if that is not resolved in a satisfactory way to the Ombudsman.

Information about the Local Government Ombudsman is here:

http://www.lgo.org.uk/make-a-complaint

Information about the Parliamentary and Health Services Ombudsman is here:

https://www.ombudsman.org.uk/making-complaint/complain-us-getting-started

The Care Quality Commission regulates health and social care providers in England. They cannot resolve complaints (unless they relate to the Mental Health Act 1983), but you can report a care provider which is not complying with it’s obligations under the Mental Capacity Act 2005 and the CQC will take this into account when inspecting the service:

http://www.cqc.org.uk/contact-us/how-complain/complain-about-service-or-provider

If you are concerned about a local authority or care provider in Wales, then report concerns to the Care and Social Services Inspectorate in Wales:

http://cssiw.org.uk/raiseaconcern/?lang=en

If you are concerned about a healthcare provider in Wales, then report concerns to the Healthcare Inspectorate Wales:

http://hiw.org.uk/contactus/provide/?lang=en

The Act, case law and the Code of Practice

If you want to read the law itself, you can look at it here:

http://www.legislation.gov.uk/ukpga/2005/9/contents

Many people find the Code of Practice easier to read than the law, although parts of it are out of date:

https://www.gov.uk/government/publications/mental-capacity-act-code-of-practice

If you want to read case law about the Mental Capacity Act 2005, you can find cases on the BAILII website:

http://www.bailii.org/ew/cases/EWCOP/

39 Essex Chambers and Mental Health Law Online both provide summaries of Mental Capacity Act case law:

http://www.mentalhealthlaw.co.uk/Main_Page

http://www.39essex.com/cop_cases/

More advanced resources on the Mental Capacity Act can be found on Alex Ruck Keene’s Mental Capacity Law and Policy website:

http://www.mentalcapacitylawandpolicy.org.uk/resources-2/

The Transparency Project also writes helpful articles explaining Court of Protection cases that have been in the media:

www.transparencyproject.org.uk

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2 thoughts on “A rough guide to the Mental Capacity Act 2005

  1. Another group you might like to publicise is Ageing Without Children (www.awoc.org.uk) It is estimated that some 20%+ of the population will grow old without a family carer and as a result they are even more vulnerable should their health decline or in the event of a loss of capacity

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