What is the Mental Capacity Act?

The Mental Capacity Act (MCA) is a law that aims to safeguard and empower individuals who may be unable to make decisions regarding their own care and treatment. It applies to people aged 16 and older.

The MCA ensures that people who lack the capacity to make important decisions in their lives get the support they need to make decisions for themselves. In circumstances where a person is not able to decide for themselves, the MCA allows for a decision maker to be appointed for them. This decision-maker must always decide according to the individual’s ‘best interests’.

The MCA covers all sorts of decision-making including everyday choices such as what to wear or what to eat as well as significant decisions like whether to enter a residential care home or undergo major surgery.

Some examples of people who may lack the capacity to make the best decisions for themselves include people with:

  • Dementia
  • Severe learning disabilities
  • A brain injury
  • A mental health condition
  • A stroke
  • Someone unconscious due to illness or injury

However, just because someone has one of these conditions it does not necessarily mean they lack the capacity to make any decisions for themselves. Someone may lack the capacity to make certain decisions (for instance, complex financial decisions) but may be perfectly capable of deciding other things like what to eat or what to wear.

The MCA makes it clear that people should be presumed to have the ability to make decisions for themselves unless it is proven otherwise. All efforts should be made to assist individuals in making their own decisions and they should not be deemed as lacking capacity simply because they make an unwise decision.

How is Mental Capacity Assessed?

The MCA establishes a 2-part test for assessing capacity:

  1. Is the person unable to make a particular decision due to an impairment of their mind or brain, whether as a result of an illness or external factors such as alcohol or drug use?
  2. Does the impairment mean the person is unable to make a specific decision when they need to?

It’s important to remember that capacity can fluctuate with time. Someone may lack capacity at one point in time but may be able to make the same decision at a later date with further support.

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 the information given to them regarding the decision.
  • 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.

Helping People Make Their Own Decisions

Sometimes all it takes to help someone make their own decisions is the right support. The MCA makes it clear that everyone has the right to make decisions for themselves wherever possible and should be provided with the support they need to do so.

The MCA provides guidance on the four key steps in assisting someone in making a decision:

  • Provide necessary information – Ensure that the person has access to all the relevant information needed to make the decision and present them with all available options.
  • Communicate effectively – Consider how the information can be presented in a manner that is easy for the person to understand, such as using simple language or visual aids. Explore alternative forms of communication if needed, such as non-verbal methods or assistance from a support worker, family member, interpreter, or speech and language therapist.
  • Create a comfortable environment – Consider the person’s understanding and comfort level. This may include considering the time of day or location that may be more suitable for them.
  • Provide support – Determine if others can assist or support the person in making choices or expressing their views.

Best Interest Decision-making

After all the steps in supporting someone to come to their own decisions have been met, there may be times when a person still lacks the capacity to make a decision for themselves. In these instances, a decision can be made on their behalf. The MCA states that these decisions must always be made in the individual’s ‘best interests’.

The person responsible for making this decision is referred to as the “decision maker.” The person chosen to be the decision maker will vary based on the situation and type of decision.

For most day-to-day decisions, the decision maker is typically the person supporting the individual. Decisions related to healthcare will typically be the relevant healthcare professional.

The MCA provides a checklist to consider when identifying what is in the person’s best interests, including:

  • Encouraging participation and allowing the individual to take part in the decision-making process as much as possible
  • Identify all relevant information
  • Consider the person’s views, including their past and present wishes, feelings, beliefs, and values
  • Avoid discrimination and making assumptions
  • If the person may regain capacity at a later point, consider postponing the decision

It is also important to consult with others to gather their perspectives on the individual’s best interests. This includes consulting:

  • Anyone previously named by the individual,
  • Anyone caring for them,
  • Close relatives and friends,
  • Any attorney appointed under a Lasting Power of Attorney or Enduring Power of Attorney,
  • Any deputy appointed by the Court of Protection to make decisions for the person.

A full copy of the checklist can be found in the Mental Capacity Act Code of Practice PD.

Specialist Support from Liaise

Here at Liaise, we provide high-quality, residential care and supported living services across London and the home counties.

Our vibrant and welcoming, community-based properties provide tailored support to people with autism, learning disabilities and complex or profound needs.

In accordance with the MCA, we believe in providing the least restrictive environment possible while keeping the people we support safe. This includes encouraging the people we support to set goals and make as many decisions for themselves as they are able to.

We know that by helping the people we support to learn new skills and build on existing strengths they can live their best lives as freely and safely as possible.

We are here to support you and your family. To learn more about our complex care and support services, do not hesitate to call us on 0330 500 5050 or fill out our enquiry form. We look forward to hearing from you.