Thank you for listening to this short podcast on behalf of the West Sussex Safeguarding Adults Board, about the Mental Capacity Act, also often referred to as the MCA. In this podcast I will explain what the MCA is, what may affect people’s mental capacity, when capacity should be assessed and, the five principles of the MCA. I will also explain what happens after a capacity assessment, including Best Interest decisions and where you can access further information about the MCA.
So, firstly, what is the MCA?
This is a legal framework for people over the age of 16 who may lack the mental capacity to make specific decisions, on a permanent or temporary basis. It empowers people, placing them in the centre of decision-making processes, to make their own decisions, wherever possible and, protects those who may lack capacity. It also enables people to plan for a time in the future when they might lack capacity.
So now, I have explained what the MCA is, it is important to know why people’s capacity may be impacted.
Mental Capacity can be impacted for different reasons such as having a brain injury, mental health condition, learning disability, or dementia. It could also be impacted by substance misuse or, confusion, drowsiness or unconsciousness caused by an accident, illness, or treatment. The type of decisions effected can range from day-to-day choices like what to wear or eat, to more complex decisions such as where to live or, whether to have a medical treatment. Capacity may also be affected in a person who has an impairment to what is known as, executive functioning.
So, what is executive functioning?
Executive functioning is a set of abilities controlled by the frontal lobe of the brain. Impairment of this does not necessarily mean there is a lack of capacity to make specific decisions. However, when executive functioning is impaired, it can affect appropriate decision-making, reduce problem-solving abilities, planning and organisation, and impact flexibility in thinking, multi-tasking, social behaviour, emotion control and motivation. In some complex circumstances with high risk, a capacity assessment may be helped by a psychiatrist or psychologist supporting with the executive functioning element.
So, now I have explained what may affect capacity, we need to consider when should capacity be assessed and by who?
Capacity should be assessed if a person appears to be unable to make a specific decision at a specific time because their mind or brain is affected by illness, learning disability or substance misuse. People’s situations may change so the capacity decisions may need to be reviewed. Whether you consider if someone has capacity or not, this should not be influenced by the person’s age, appearance, condition, or behaviour alone.
The staff member completing the capacity assessment is usually the member of staff who needs to act on the decision. In the case of medical treatment, this would be the medical member of staff involved. For a decision on where to live, this would often be a social worker.
So, now I want to share with you the five principles of the MCA?
The first is to assume capacity. People must be assumed to have capacity, unless proven otherwise. You cannot assume a lack of capacity for any reason.
The second is to provide support. People must be supported to make the decision for themselves. If they are found to lack capacity, it is still important that the person is as involved as possible in making decisions.
The third is to enable choice. Each person has their own values, beliefs, and preferences, and should not be stopped from making a decision just because someone else thinks it is unwise, wrong, or different to a choice they would make.
The fourth is to consider what is in the person’s best interest. If a person lacks capacity, any decisions made must be in the person’s best interests. I will explain more about best interest decisions later.
Finally, the fifth principle is to make the least restrictive decisions. If a person lacks capacity, decisions made must consider the persons individual circumstances and should interfere as little as possible with the person’s rights and freedoms.
So, now you know the five principals of the MCA, let’s look at how you assess capacity.
Firstly there is a two-stage test.
In stage 1 consider if the person has an impairment or disturbance of their mind or brain and if so, what is this? As explained previously, this may be due to a condition like dementia or learning disability. If they do have an impairment or disturbance of the mind or brain, proceed to stage 2.
In Stage 2 consider if the impairment or disturbance of the person’s mind or brain means they are unable to make a decision when they need to?
There are four areas a person needs to evidence they have capacity to make a specific decision. All four areas must be met to confirm capacity:
The first is, can they understand the information given to them?
The second is, can they retain this information long enough to make a decision?
The third is, can they think about or weigh up the information to make the decision?
The fourth and final area is, can they communicate the decision by any means. This could be by talking, using sign language or even simple movements such as blinking or squeezing a hand.
The determination of a person’s capacity is made on the balance of probabilities. You should be able to show in your assessment or records why you have come to your conclusion that capacity is lacking for the particular decision. Please note that some people may have fluctuating capacity which may be as a result of their lifestyle or behaviour as well as a medical or mental health condition. Fluctuation can take place over hours, days, or weeks. If the decision is able to wait, carry out the assessment at a time when the person is at their highest level of functioning.
So, once you have assessed capacity, what happens afterwards?
If a person has capacity and chooses to make an unwise decision, this does not mean that no further action is required, particularly where the risk is deemed to be serious or critical. Other actions may include comprehensive multi-agency risk assessment. If a person lacks capacity, a decision must be made in the person’s best interest.
So, how are Best Interests' Decisions made?
When considering Best Interest Decisions, there is a MCA checklist which must be used. This includes considering:
- The person’s current wishes and feelings and those they expressed before losing capacity, as well as any beliefs and values that are important to them.
- All relevant circumstances including, type of impairment to their mind or brain, how long it may last, their age, whether they would normally make this decision, the likelihood of them regaining capacity and who has cared for or is caring for them.
- Whether they will have capacity to make the decision in future and whether the decision can be delayed.
- Involving the person in actions taken for them and decisions affecting them.
- The views of the person’s carers, family or people who may have an interest in their welfare, or people they have appointed to act for them.
There also may be other relevant questions depending on the person’s situation.
It is also important to find out if a person has made any Advance Decisions, which are decisions made to refuse care or treatment should they lack capacity in the future.
Now you know how Best Interest decisions are made, but who are these made by?
This person who makes best interest decisions is known as the ‘decision maker’ and will be the most appropriate person for the decision being made. For day-to-day decisions this could be a carer. For decisions are about care arrangements, accommodation, or medical treatment, the decision maker would be a professional such as a social worker, doctor, nurse and/or a Deputy or Lasting Power of Attorney, known as a LPA. An LPA is a person who has been formally appointed to look after a person’s health, welfare and/or financial decisions, if at some time in the future they lack capacity to make decisions for themselves.
A person may also require the support of an Independent Mental Capacity Advocate known as an IMCA, who will support and represent the person in the decision-making process when the person does not have family or friends who can represent them. A referral must be made for an IMCA if there is not an appropriate representative.
So, finally, what is the interface between the MCA and other Acts and legislation?
It is important to understand the interface between the MCA and the Mental Health Act as there is still the requirement to follow the MCA even when a person is detained under the Mental Health Act. Staff also need to have an awareness of the Deprivation of Liberty Safeguards and understand which legal framework should be used at the relevant time, to deprive a person of their liberty.
There are also various roles, bodies, and powers supporting the MCA, such as Lasting Powers of Attorney, the Court of Protection, and the Public Guardian. Links to further information about these can be found in the learning briefing accompanying this podcast.
This brings us to the end of our podcast. Thank you for your time to listen to it. We do appreciate you recognising the importance and value of working in accordance with the MCA to help deliver consistent and legally compliant practice to those who we are supporting.