Mental capacity Act & DOLS

Mental Capacity Act 2005

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Mental Capacity act 2005 has been in force since 2007

Primary purpose to promote and safeguard decision making within a legal framework

This is done in 2 ways1. People 16+ who are unable to make all or

some decisions for themselves2. Support to those who are 18+ who have

capacity and choose to place for their future

Key messages

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The Mental capacity Act (MCA) 2005 applies to everyone involved in theCare, Treatment, Support

- Of people who are 16+ who are unable to make decisions for themselves

- Of people who are 18+ who have capacity and choose to plan for their future

Key messages

The MCA also provides support and guidance for less formal carers

Key messages

The MCA 5 statutory principles are thebenchmark and must underpin all acts

carriedout and decisions taken in relation to the Act

Key messages

Anyone caring for or supporting a person whomay lack capacity could be involved in

assessingcapacity and must follow the two stage test

Key messages

The MCA is to empower those in health andsocial care to assess capacity themselves

ratherthan rely on expert testing

Key messages

Understanding and using the MCA supportspractice for example the application of the

Deprivation of Liberty Safeguards

Key messages

All professionals have a duty to comply with the

Code Of Practice

Key messages

If capacity is lacking follow the checklistdescribed in the Code to work out the best

interests of the individual concerned

Key messages

The Act is underpinned by five key principles (Section 1, MCA)

5 Key Principles

Principle 1: A presumption of capacity

– Every adult has the right to make their own decision and must be assumed to have

capacity to do so unless is it proved otherwise

5 Key Principles

Principle 2: Individuals being supported to make their own decisions

- A person must be given all practicable help before anyone treats them as not being

able to make their own decisions

5 Key Principles

Principle 3: Unwise decisions

- People have the tight to make decisions that others might regard as unwise or eccentric

5 Key Principles

Principle 4: Best Interests

- Anything done for or on behalf of a person who lacks mental capacity must be done in

their best interests

5 Key Principles

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 & freedoms of action, or

whether there is a need to decide or act at all.

5 Key Principles

Sections 2 – 4 MCAUnder the act you are required to carry out an assessment of capacity before carry out

any care or treatment having taken into account the 5 key principles

Assessment of capacity

Sections 2 – 4 MCAYou should also ensure that the more serious

the decision that is required the more formal the assessment process should be

Workers are required to be aware of when there is a need for capacity to be assessed

- Someone’s mind or brain is affected by illness or disability

- Lack of capacity might not be a permanent condition

- Assessments of capacity should be time and decision specific

- Assessments of capacity should not be based on age, appearance, condition or behaviour alone

The MCA has a 2 stage functional test of capacity which helps to decide whether a person has the capacity to make a specific

decision

The test to assess capacity

Stage 1

Is there an impairment of or disturbance in the functioning of a person’s mind or brain?

If so.....

Stage 2

Is the impairment of or disturbance sufficient that the person lacks the capacity to make

a particular decision?

The MHA states the a person is unable to make their own decision if they cannot do

one or more of the following 4 things:

1. Understand information given to them2. Retain that information long enough to be

able to make a decision3. Weigh up the information available to

make the decision4. Communicate their decision

Communicate their decision – this can be written, verbal, sign language or muscular movement including squeezing a hand or

blinking an eye

The act is clear that communication methods must be fully explored before deciding on

lack of capacity which is only based on inability to communicate

The act is clear that communication methods must be fully explored before deciding on

lack of capacity which is only based on inability to communicate

In addition you must involve family, friends, carers and professionals to fully explore

communication

The MCA states that you should base the outcome of your assessment on the balance

of probabilities

– meaning it is more likely than not that the person lacks capacity

- Your records should clear show how you came to this outcome in this particular

decision

When a person is assessed as lacking capacity then the person who acts on their behalf is known as the “Decision-Maker”

Best interest decision - making

The “Decision-Maker” is usually someone who is involved with the persons ongoing care on a day to day basis, they maybe a

professional or a carer, a social worker or a nurse

The “Decision-Maker” must make decisions which are in the best interest of the person

who is said to be lacking in capacity

The “Decision Maker” makes decisions to do with regard to treatment, care or

accommodation needs

There is an non exhaustive checklist of factors that “The Decision-Maker” must work through in deciding what is in the

person’s best interest

Attorneys appointed under Lasting Powers of Attorney (LPAs)

Court of Protection and Deputies The Public Guardian Independent mental capacity advocates

(IMCA) Advance decisions to refuse treatment A criminal offence

MCA New roles, bodies & powers

Attorneys appointed under Lasting Powers of Attorney (LPAs)

- this allows people over the age of 18 to formally appoint a person or person who can look after their needs including health, welfare and financial decisions if at sometime they are not able to due to lack of capacity

Court of Protection and Deputies

- A new court and public official created to protect people who lack capacity and to be responsible for supervising those that make decisions on that persons behalf.

- The court can appoint Deputies to those who are deemed to have ongoing lack of capacity for example

The Public Guardian

Independent mental capacity advocates (IMCA)

Advance decisions to refuse treatment

A criminal offence

Mental capacity Act & DOLS

Education

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