Mental capacity act: how the law will work

March 21, 2007 in Adults, Mental Health

This article summarises the Mental Capacity Act 2005 and its effects upon the social care sector.

You may have heard about the Mental Capacity Act 2005 and thought it would not relate to you or your work. You may be in for a surprise. To see if the act will affect you, consider the questions below:

* Do you work with people who have difficulty making decisions? This could include people with: dementia, learning difficulties, autism, brain injury for example following a stroke, mental health problems, confusion caused by substance misuse or from the side effects of treatment.

* Do you provide a social care service or make social care decisions for people who have difficulty making decisions? This could include care, domiciliary care supported housing services, residential care, daycare provided by voluntary organisations, moving someone to a hospital or care home.

If you answered yes to both of these questions then the Mental Capacity Act will apply to you from next month. This act will override all existing guidance and policies on capacity. From this date if you are making social care decisions or delivering social care to people who lack capacity to make decisions, you must use the new legislation to do so.

The act relates to any decision concerning the healthcare, social care or finances of people who lack capacity. It is not limited to any specific environment, so it will be operational in many areas, for example, in a person’s home, in care homes, GP practices and voluntary day centres.

The provisions of the act can be divided into three main areas:

Protection for the service user

The act provides protection for people whose capacity is called into question. At present it is not uncommon for people to be labelled as lacking capacity to make decisions based on their diagnosis, such as a learning difficulty. The legislation provides protection by asserting the fundamental right that, no matter what a person’s diagnosis or behaviour, they must be assumed to have capacity. Any doubts over a person’s capacity must be proven, and this can only be done by following the procedures of the act.

Protection for staff

The legislation also provides protection for staff and carers by providing a mechanism for staff to make decisions on behalf of people who lack capacity, and providing legal protection for such decisions.

Powers

For people who do have capacity, the legislation provides powers to plan ahead for a time when they may lack capacity, through either an advance decision or a lasting power of attorney. For staff (or others) working with people who lack capacity, there will be the power to make a care or treatment decision on their behalf (best interests decision). The act provides a standard procedure for making such decisions.

The protection and powers detailed above are only accessible by following the act. Anyone working with people who lack capacity is obliged to follow the rules and procedures laid down in it. The act applies to all adults aged 16 and over and is due to come into force in England and Wales between April and October 2007. A statutory code of practice that provides guidance in using the act is due for publication in January 2007.

There are five principles underpinning the entire act, and whenever a person uses the act they must adhere to the principles in everything they do:

• A person must be assumed to have capacity unless it is proved otherwise.

• Until all practicable steps have been taken to help someone make a decision without success, they cannot be treated as lacking capacity.

• An unwise decision does not in itself indicate a lack of capacity.

• If a person does lack capacity then any act or decision made by others must be in the person’s best interests.

• Any act or decision made on behalf of a person who lacks capacity must consider the least restrictive option in terms of the person’s rights and freedom of action.

The capacity test is central to the entire legislation and is the gateway to the majority of the powers provided by the act. If a person fails the test and is therefore deemed to lack capacity, the rest of the act can be accessed. Anyone can carry out the test of capacity (not just a doctor or clinician). The test is based upon a person’s ability to make a specific decision at a specific time. The act does not permit generalised statements that a person lacks capacity indefinitely for all care decisions.

There are four parts to the test and failure on any one part indicates a lack of capacity. To have capacity a person must: understand the information relevant to the decision required retain this information long enough to make a decision use or weigh the information to arrive at a choice communicate the decision (in any form recognised by those doing the test).

If a person is assessed as lacking capacity to make a specific decision, the act allows another person involved in the matter to make a ‘best interests’ decision on their behalf. Section 4 of the act provides a checklist that must be followed when making a best interests decision. The list is not exhaustive, but it provides a mandatory minimum to ensure a uniform approach to all cases.

The act contains a number of powers that will have a direct and beneficial impact on vulnerable adults’ procedures for people lacking capacity. The case study below highlights its potential impact.

Case Study

A woman with dementia lives at home with her son. There is clear evidence of physical abuse to the woman, who lacks capacity to make any statement or consent to move to new housing. The son refuses to allow his mother to be moved.

The act could be used as follows:

● An independent mental capacity advocate is appointed by the local authority to support the woman during vulnerable adult procedures.
● The Court of Protection (a new body with more powers than the current Court of Protection) issues an order to remove the woman and place her in new housing.
● The Court of Protection appoints a deputy to make future health and social care decisions for the woman.
● The Court of Protection makes an order restricting contact with the son.
● The criminal offence contained in the act for the ill-treatment or neglect of a person who lacks capacity could be used to prosecute the son.

Steven Richards is a mental health advocate with Matrix Advocacy Services in Surrey. He has worked in the mental health sector for 15 years. Together with Aasya Mughal (a barrister) he has written Working With The Mental Capacity Act 2005. They also run training courses on the new legislation.

Training and learning

The author has provided questions about this article to guide discussion in teams. These can be viewed at www.communitycare.co.uk/prtl and individuals’ learning from the discussion can be registered on a free, password-protected training log held on the site. This is a service from Community Care for all GSCC-registered professionals.

Further information

● To register for a monthly e-bulletin on the implementation of the act e-mail: makingdecisions@dca.gsi.gov.uk

● National Implementation Team: makingdecisions@dca.gsi.gov.uk

● To see the full act and current draft code of practice and other documents visit www.dca.gov.uk/legal-policy/mental-capacity
● At a regional level the following people are responsible for co-ordinating information and training about the act.

West Midlands: Coline.Vines@csip.org.uk 07748 703 687 ; Richard.Bartholomew@csip.org.uk , 07748 541 956
South East: Keithnieland@aol.com 07711 980 057
North West: Paul.Greenwood@northwest.csip.org.uk 07795 963 509
South West: David.Pennington@nimhesw.nhs.uk 07799 627 244
Yorkshire & Humber: Bruce.Bradshaw@nimheneyh.nhs.uk 07940 361 335
Eastern: Lou.Brewster@nemhpt.nhs.uk 01206 287 541
East Midlands: Sylvia.Manson@eastmidlands.csip.nhs.uk 07810 636 462
London: Sarah.Haspel@londondevelopmentcentre.org 07768 045 166