The Mental Capacity Act 2005 (‘the Act’) provides the statutory framework in England and Wales, for people aged 16 to make their own decisions, if the presumption of mental capacity can still be said to apply to them, despite apparent cognitive functioning difficulties.
It sets out the legal framework for people who may lack capacity to remain involved in decision-making about them by others, and for people who have capacity and want to make preparations for a time when they may lack capacity in the future, to do so.
The provisions in the Act are enlarged upon by a Code of Practice (‘the Code’), which offers guidance and information about how the Act should work, in practice.
The Act and Code are important parts of the UK’s commitment to the United Nations Convention on the Rights of Persons with Disabilities.
The Code has statutory force, which means that certain categories of people have a legal duty to have regard to it when caring for, or being paid to support adults who may lack capacity to make decisions for themselves.
Everyone else, however, should take account of it as well, or at least be familiar with it, because the principles underpinning it deserve respect as between individuals, and not just by people who are paid, or professionals.
The special significance of mental incapacity in Care Act pathways – and safeguarding
Assessment – the client may have incomplete insight into his or her own needs… and hence need support, or an advocate or a professional judgement, from a provider, even if he or she disagrees with it….
Resource allocation – the client may be unable to challenge hopelessly inadequate allocations … and is therefore especially vulnerable in relation to local authority or NHS desperate financial straits… and providers often just give IN to pressure, to deliver savings…
Support planning – the client may lack understanding of risks arising from his or her wishes or feelings, and of his or her own legal responsibilities…so providers (and commissioners) need a legal framework and some powers, in order to do right without doing wrong.
Best interests – there is an obvious impossibility of ‘agreeing’ risk allocation in concerning situations, with an incapacitated person! Best interests relatives and carers don’t have the right to discharge the council’s duties by just saying they ‘agree’, unless they have formal welfare powers of representation under the MCA.
Vulnerability to others’ influence with regard to support planning – or an inability to defend oneself against a dodgy third party, whether related, or a formally paid provider – or the council itself, or the council’s employed or contracted-for support planners….
Special features of ‘risk’ in social care
The client’s mental capacity does not determine care planning, because it is the authority’s responsibility under statute to make the final decision as to what it is appropriate to provide to meet its view of needs. One could be as intellectually gifted and respected as Stephen Hawking and still not be entitled to tell a junior OT which wheelchair to allocate, if the State was paying…
However, incapacity is the single biggest factor in the extent to which the client’s views should regarded as weighty in determining the finalisation of the co-produced support plan.
And there is liability risk (negligence, human rights, etc) – because the more incapacitated the person, the more responsibility lies with the authority (where liability is even possible).
Regarding safeguarding – there can be warnings for capacitated vulnerable people, interventions for incapacitated people.
If the person in question has capacity to consent to being fed by mouth, knowing the consequences, it is nobody’s business, other than that of the police.
Their best interests are for them, not the Council (or any provider), and the informal carer is not part of their care package that the Council arranges under the Care Act. That commissioned provider can check that the person knows that the carer is not following advice; and they could warn the person and document having warned the client.
But in a case where this dubious even if conscientious informal carer has an incapacitated person in their physical custody, that might mean that someone needs to take adult protection legal proceedings in the Court of Protection in order to prevent the informal carer from doing harm and acting in less than the objective best interests of the client…
If it was a person with Continuing Health Care status, it would be for the NHS to take the proceedings.
The Code of Practice describes how people should try to support people to make their own decisions as far as possible (without defining what makes it ‘impossible’) and their responsibilities when acting or making decisions on behalf of individuals, if they decide that those others lack the capacity to act or make these decisions for themselves.
The Code also provides guidance on the Deprivation of Liberty Safeguards (‘DoLS’).That paperwork-based system authorizes any arrangements for care and treatment which must be acknowledged to constitute, in legal terms, a deprivation of liberty, for people who lack the relevant mental capacity to consent to these arrangements. The DoLS scheme provides the necessary legal safeguards for the person in England and Wales such that their human right to freedom from unlawful deprivation of liberty is not ignored, substantively or procedurally.
The Act does not impose a legal duty on anyone to ‘comply’ with the Code, which should be viewed as guidance rather than instruction. The Act gives people a defence to claims against THEM for touching or restricting the freedom of a person, IF the Code was complied with at the time. That is why everyone is better off understanding it, however unlikely it is that a person will ever be sued by their own cognitively impaired relative for trying to look after them properly.
If someone working with or caring for a person who lacks or may lack capacity has not followed relevant guidance contained in the Code, then they should expect to be required by a variety of authorities to give good reasons why they have departed from it. For instance, they would not be able to rely on the s5 defence if anyone were to take proceedings against them in the ordinary Courts, for assault, trespass, breach of confidentiality, etc. Even if things do not go that far, a safeguarding enquiry might involve probing a person as to what they thought they were doing when they restricted a person’s freedom for no apparently good reason; or the police may question that person.
Certain categories of people are legally required to ‘have regard to’ the relevant guidance in the Code of Practice. That means they must be aware of the Code of Practice when supporting or making decisions on behalf of someone who lacks or may lack capacity to make a decision for themselves. They should follow the Code and be able to explain their reasons if they have not, which is not easy to do, if they do not even know about its existence.
That is why training covering the legal framework and fostering an ethical and professional culture is an important aspect of working in the health or care sectors. But this category of people covers ordinary people, not just those in a paid or professional relationship with an individual.
As well as
- anyone acting in a professional capacity for, or in relation to, a person who lacks capacity.
- anyone being paid to carry out actions for or in relation to a person who lacks capacity.
…it includes
- Deputies (for either finance or welfare) appointed by the Court of Protection
- Attorneys (for either finance or welfare) under a Lasting Power of Attorney (‘LPA’)
- an Independent Mental Capacity Advocate (an ‘IMCA’)
- anyone carrying out research approved in accordance with the Act
People acting in a professional capacity may include:
- a variety of healthcare staff (doctors, dentists, nurses, ICB management, therapists, radiologists, paramedics, physiotherapists, osteopaths, anaesthetists etc)
- social care staff (social workers, care managers, care home managers, children’s home staff etc)
- others who may occasionally be involved in the care of people who lack capacity to make the decision in question, such as paramedics, housing workers, or police officers.
People who are being paid to carry out actions for or in relation to a person who lacks capacity may include:
- care assistants in a care home
- healthcare assistants in a hospital
- care workers providing domiciliary care services,
- shared Lives carers,
- supported living services staff
- personal assistants and support workers, and
- others who have been contracted to provide a service to people who lack capacity to consent to that service, for example staff at a day care centre or at an activity group.
However, the principles of the Act apply more generally to everyone who cares for or supports someone who lacks or may lack capacity to make particular decisions for themselves, including family carers or other unpaid carers.
The underlying philosophy of the Act is to empower people to make their own decisions where possible including in the eyes of other people – and to ensure that any relevant Mental Capacity Act decision made, or action taken, on behalf of someone who lacks the capacity to make the decision or act for themselves is made in what is called their ‘best interests’.
The Act is intended to assist and support people who may lack capacity and to discourage anyone who is involved in caring for them from being overly restrictive or controlling.
But the Act also aims to balance an individual’s right to make a decision for themselves with their right to be safeguarded from harm if they lack capacity to make a decision to protect themselves.
The Act sets out core principles and framework for making decisions and carrying out actions in relation to a wide range of matters including personal welfare, healthcare and financial matters – not all decisions that have to be made, ever, by a person, but a wide range.
The Act contains several roles, bodies and powers, all of which support the Act’s provisions.
- Attorneys appointed under Lasting and Enduring Powers of Attorney
- The Office of the Public Guardian (OPG)
- The Court of Protection
- Court-appointed deputies
- Independent Mental Capacity Advocates
- day-to-day matters like what to wear, what to buy when doing the weekly shopping, or routine medical treatment
- major life-changing events, such as whether the person should move into a care home or undergo major medical treatment
There are certain decisions which can never be made on behalf of a person who lacks capacity. This is because they are either very personal to the individual concerned or governed by other legislation.
Sections 27 to 29 and section 62 of the Act set out the specific decisions which can never be made or actions which can never be carried out on behalf of a person who lacks capacity under the Act, whether by family members, carers, professionals, attorneys or the Court of Protection.
Section 27 of the Act specifically excludes decisions relating to the following matters:
- consenting to marriage or a civil partnership
- consenting to have sexual relations
- consenting to a decree of divorce on the basis of two years’ separation
- consenting to the dissolution of a civil partnership
- consenting to a child being placed for adoption or the making of an adoption order
- discharging parental responsibility for a child in matters not relating to the child’s property
- giving consent under the Human Fertilisation and Embryology Act 2008
This list does not mean that nobody can make a decision preventing these things from happening in the first place, nor prevent action being taken to safeguard a person at risk of abuse or exploitation: a capacity assessment should be undertaken if necessary, in order to establish whether the person lacks capacity to make a decision on one of these matters, and it would be wrong for such things to be allowed to happen if the answer is that the presumption must be regarded as lost.
Disputes about capacity in such contexts go to the Court of Protection in the ordinary way.
The Code sets out the five statutory principles behind the Act and the way they affect how it is put into practice.
It explains how the Act makes sure that people are supported to make their own decisions as far as possible. It is useful when trying to keep the person at the centre of the Deprivation of Liberty Safeguards system.
It explains how the Act defines ‘a person who lacks capacity to make a decision’ and sets out a clear test for assessing whether a person lacks capacity to make a particular decision at a particular time.
It explains what the Act means by acting in the best interests of someone lacking capacity to make a decision for themselves, and describes the checklist set out in the Act for working out what is in someone’s best interests.
It explains how the Act protects people who provide care or treatment for someone who lacks the capacity to consent to the action being taken.
It describes the role of the Court of Protection, established under the Act, to make decisions or declarations in cases where there is no other way of resolving a matter affecting a person who lacks capacity to make the decision in question. The additional part of the Code governing the Deprivation of Liberty Safeguards provides guidance on the role of the Court in the authorisation process.
It explains how people who wish to plan ahead for the possibility that they might lack the capacity to make particular decisions for themselves in the future are able to grant Lasting Powers of Attorney (LPAs) to named individuals to make certain decisions on their behalf, and how attorneys appointed under an LPA should conduct themselves.
It describes the role of deputies appointed by the Court of Protection to act and make decisions on behalf of someone who lacks capacity to make those decisions and explains how they are supervised.
It describes the role of Independent Mental Capacity Advocates (IMCAs) appointed under the Act to help people who lack capacity to make certain significant decisions. It also sets out when they should be instructed, including the role of IMCAs under the Deprivation of Liberty Safeguards.
Itexplains the procedures that must be followed if someone wishes to make an advance decision to refuse medical treatment to come into effect when they lack capacity to refuse the specified treatment.
The supplementary Code introduces and explains the definition of a deprivation of liberty for the purposes of the DoL Safeguards.
It explains those parts of the Act which can apply to children and young people and how these relate to other laws affecting them, including how the DoL Safeguards system does not apply to 16- and 17-year olds, such that CoPDoL process must be followed instead.
It explains how the Act relates to the Mental Health Act 1983 and provides specific guidance on the interface between the Mental Health Act and the DoL Safeguards.
It describes the different agencies that exist to help make sure that adults who lack capacity to make a decision for themselves are protected from abuse and neglect in terms of local authority led safeguarding.
It describes the various ways that disputes over decisions made under the Act otherwise affecting people who lack capacity to make relevant decisions can be resolved. It provides some guidance specific to challenging the DoL Safeguards process and, where applicable, authorisations.
It summarises how the laws about data protection and freedom of information relate to the provisions of the Act.
What does it mean to speak of someone ‘lacking capacity’?
Whenever the term ‘a person who lacks capacity’ is used, it means a person who lacks capacity to make a particular decision or take a particular action for themselves at the time the decision or action needs to be taken.
That does not mean at that very moment, necessarily and that does not mean that when someone’s incapacity in a particular regard is reasonably regarded as fixed and stable, one still has to get the Act out every single time the same sort of decision is made.
This issue-specific approach is more about educating people not to make an assumption that just because the person cannot make a decision about x, y, or z, it must all be the case that they can’t make one about p, q, or r, when those issues would be very different to the first set, in anyone’s eyes.
A person may have capacity to make small decisions about everyday issues such as what to wear or what to eat but lack capacity to make more complex decisions about financial matters – or decisions about small sums of money for everyday purposes, but not a big premium bonds win or compensation for personal injury.
A person’s incapacity may be because they are unconscious or barely conscious, through an accident, being anaesthetised or sedated, or simply under the influence of alcohol or drugs. One must always bear in mind that someone unable to make a decision for themselves at a certain time may be able to make that decision at a later date – and give them the chance to do so, unless a decision must be urgently made.
People recover cognitive functional skills after a stroke, sometimes, for instance. People with cognitive disabilities can sometimes learn new skills or be taught to sequence their thinking so that they gain more capacity, eventually.
The Act makes it the law that it should be assumed that a person has legal capacity to make a decision for themselves (the legal right to autonomy and the source of responsibility for the consequences) unless it is ‘established’ that they do not have capacity. This is called the presumption of capacity.
A person will lack capacity if an assessment evidences clearly that they do not have capacity to make a decision at the time it needs to be made.
The Act also states that people must be given all practicable help and support to enable them to make their own decision, or to maximise their participation in any decision-making process.
Where a person who lacks capacity to consent to treatment is currently detained and being treated under Part 4 of the Mental Health Act 1983, nothing in the Act authorises anyone to:
- give the person treatment for mental disorder
- consent to the person being given treatment for mental disorder
This is provided for in s28 and has the effect that the Mental Health Act trumps the Mental Capacity Act’s mechanisms and rules, in most respects, although that is not to say that clinical professionals do not need to take account of the MCA. They must, still, in terms of human rights, given article 8 rights to respect for people’s autonomy, take steps to minimise the extent to which they use compulsory powers and confine their use to the extent conferred by the law, and not wider, just because they will probably be regarded as empowered.
The Mental Capacity Act 2005 is often described as applying ‘in conjunction with’ other legislation affecting people who may lack capacity in relation to specific matters.
The meaning of that phrase requires some unpacking because the way Acts butt up against each other, is a matter of legal principle, statutory interpretation and judicial decision-making. But in general, it means that those acting under the Act should also be aware of their obligations under other legislation, including (but not limited to) the:
- Care Act 2014
- National Health Service Act 2006
- Social Service and Wellbeing (Wales) Act 2014
- Health and Social Care Acts 2012, 2022
- Data Protection Act 2018
- Equality Act 2010
- Human Rights Act 1998
- Children and Families Act 2014
- Children Act 1989
- Health and Social Care (Safety and Quality) Act 2015
- United Nations Convention on Rights for Persons with Disabilities
- Fraud Act 2006
- Mental Health Act 1983
The principles set out in the Act
Section 1 of the Act sets out the five ‘statutory principles’ – the values that underpin the legal requirements in the Act, and the Code provides guidance on how people should interpret and apply the statutory principles when using the Act.
The five principles are as follows:
- A person must be assumed to have capacity unless it is established that they lack capacity.
- A person is not to be treated as unable to make a decision unless all practicable steps to help them to do so have been taken without success.
- A person is not to be treated as unable to make a decision merely because they make an unwise decision.
- An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in their best interests.
- Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.
People assessing others’ capacity …
- should ensure all practicable steps have been taken and continue to be taken to try and support the person to make the decision for themselves.
- should make sure that they understand the nature and effect of the decision to be made themselves.
- may need access to relevant documents and background information (for example, details of the person’s finances if assessing capacity to manage affairs, or of their cultural background).
- may need other relevant information to support the assessment (for example, healthcare records or the views of staff involved in the person’s care).
Family members and close friends may be able to provide valuable background information (for example, the person’s past behaviour and abilities and the types of decisions they can currently make).
The existence of mental capacity can be broken down into three questions:
- Is the person able to make the decision (with support, if required) according to the test in law?
- If they cannot, is there an impairment or disturbance in the functioning of their mind or brain?
- Is the person’s inability to make the decision because of the impairment or disturbance?
The question must never be decided simply based on the physical characteristics of certain conditions (for example, scars, features linked to Down’s syndrome or muscle spasms caused by cerebral palsy) as well as aspects of appearance like skin colour, tattoos and body piercings, or the way people dress (including religious dress).
It cannot be determined by physical disabilities, learning difficulties and disabilities, illness related to age, and temporary conditions (for example, drunkenness or unconsciousness); nor on aspects of behaviour such as shouting or gesticulating, withdrawn behaviour (such as avoiding eye contact), or differences in behaviour, including regarding decision-making, related to the person’s religious or cultural background.
The Act requires a person providing care and treatment to have a reasonable belief that the individual lacks capacity to agree to the steps being taken If appropriate steps have been taken to consider the individual’s capacity, then a belief that it is more likely than not that they lack capacity will be reasonable. The same will apply when considering whether the person has capacity to consent to arrangements for enabling their care and treatment which are being considered under the DoLS.
A conclusion that a person lacks capacity to make a particular decision must be based upon the right test, and not on any other test a health or social care professional may use for other tasks. For instance, a psychiatrist may feel a person lacks insight into their condition, but this does not in itself mean the person lacks capacity to make a specific decision. A Mini-Mental State Examination may aid in assessing whether a person has dementia, but a particular score does not itself mean that the person has or lacks capacity to make a specific decision.
A person is unable to make a decision if they cannot:
- understand information about the decision to be made (the Act calls this ‘relevant information’),
- retain that information in their mind (long enough to make the decision),
- use or weigh that information as part of the decision-making process, or
- communicate their decision (by any means). See section 3(1).
If a person is reasonably regarded as not being able to do just one of these things, they will have lost the presumption of capacity. The features are cumulative, like building blocks and all these questions must be asked.