4.2 Explain key provisions of legislation, codes of practice and policy regarding mental capacity and how these relate to the service

This guide will help you answer 4.2 Explain key provisions of legislation, codes of practice and policy regarding mental capacity and how these relate to the service.

Supporting adults with care needs demands respect for their rights and choices. Managers and leaders have a duty to follow laws and good practice relating to mental capacity. Failing to follow these rules can result in harm or injustice to those needing support.

The Mental Capacity Act 2005

The Mental Capacity Act 2005 (MCA) sets the primary legal framework for decision-making on behalf of adults in England and Wales who cannot make decisions for themselves. This law applies to everyone aged 16 and over. It protects individuals who may lack the capacity to make some decisions because of illness, injury or disability.

Principles of the MCA

The MCA is built on five main principles:

• Presume capacity – Every adult has the right to make their own decisions. You should always assume mental capacity unless it is proven otherwise.
• Support to make decisions – People must receive all possible help before anyone treats them as unable to decide.
• Unwise decisions – Having capacity means having the right to make decisions others may view as unwise or unusual, as long as the person understands the decision.
• Best interests – If someone lacks capacity, any act or decision on their behalf must be in their best interests.
• Least restrictive option – Any act done or decision made must limit the person’s rights and freedoms as little as possible.

When Does the MCA Apply?

The Act covers day-to-day decisions, such as choices about food or clothing, and major decisions, such as managing finances or consenting to medical treatment. It affects anyone working with or caring for people who cannot make specific decisions themselves.

What Does the MCA Say About Assessing Capacity?

Assessing capacity is a process, not a single test. Staff must:

• Decide if there is reason to doubt someone’s capacity for a specific decision.
• Support the person to make their own decision.
• Ask, “Can the person understand, retain, and weigh up the information to make this decision and communicate their choice?”
• Only continue if all support fails and the person still cannot decide.

If someone cannot decide, this should be recorded with reasons. Every step must focus on the person’s wishes, feelings and beliefs.

The Role of Advance Decisions and Lasting Power of Attorney

The MCA gives people the option to plan ahead in case they become unable to decide in the future.

• Advance Decision: A written statement made while someone has capacity, explaining what medical treatments they refuse if they lose capacity in the future.
• Lasting Power of Attorney (LPA): A legal document allowing a chosen person to make decisions for someone who loses capacity. There are two types: Property and Financial Affairs LPA, and Health and Welfare LPA.

These documents must be respected. Ignoring them could lead to legal action.

Court of Protection

If disagreements arise about a person’s capacity or best interests, the Court of Protection can make decisions or appoint a deputy to act on someone’s behalf. Managers must know when to refer cases or seek legal advice.

Deprivation of Liberty Safeguards (DoLS)

Some people need to be cared for in a way that restricts their freedom for their own safety. This is called “deprivation of liberty”. The DoLS framework protects those who do not have capacity to consent to their care arrangements.

Key features of DoLS:

• Applies to people in care homes and hospitals.
• Aims to ensure restrictions are lawful, reasonable, and regularly reviewed.
• Requires independent assessments and authorisation from a supervisory body (local authority).

If a service deprives someone of their liberty without following DoLS, this breaks the law.

Mental Health Act 1983 (Amended 2007)

Sometimes people with mental health conditions are treated under the Mental Health Act 1983. This Act allows compulsory admission to hospital and treatment but works in combination with the MCA. Staff must understand these overlaps. If someone lacks capacity and is not detained under the Mental Health Act, the MCA applies.

Human Rights Act 1998

This Act protects basic rights such as respect for private and family life, liberty and security. All actions under the MCA and care decisions must respect these rights. Restricting someone’s freedom can only happen for a good reason, based on law, and in a way which is fair and justified.

Care Act 2014

This Act lays down duties for local authorities and care providers to promote individual wellbeing and personal choice. It reinforces the importance of mental capacity in deciding care and support.

Key areas linking mental capacity and the Care Act include:

• Assessment and support planning: People must be supported to be involved as much as possible. Assessments should identify if someone has, or may have, a lack of capacity.
• Safeguarding: Protecting people from abuse or neglect may involve assessing capacity. The person’s wishes and feelings must be central.
• Advocacy: If someone has “substantial difficulty” in participating, and no one else can support them, the local authority must provide an independent advocate.

Codes of Practice

The MCA Code of Practice

The MCA Code of Practice gives detailed guidance for using the Act in daily work. All staff and managers must have regard to this code. It explains:

• How to carry out capacity assessments
• How to make ‘best interests’ decisions
• Procedures for advance decisions or powers of attorney
• Working with the Court of Protection or deputies
• The requirements under DoLS

Using this guidance helps services meet their legal obligations and provide good care.

Local Codes and Organisational Policy

Most providers have their own policies and procedures about mental capacity. These often restate the MCA, Care Act and DoLS requirements in a way that fits particular settings. These policies may cover:

• How to spot possible lack of capacity
• Recording decisions and assessments
• Who makes best interests decisions and when to consult family or advocates
• When to refer cases to the local authority, advocate, or the Court of Protection
• Staff training on capacity

Managers must make certain all staff know about, and follow, these policies.

Policy Requirements and Responsibilities for Leaders and Managers

Managers set the culture. Their responsibilities include:

• Embedding the principles of the MCA within care plans, daily routines, and decision-making
• Ensuring staff follow the MCA Code of Practice
• Providing regular training about capacity, best interests, DoLS, and related laws
• Checking that capacity assessments and decisions are recorded properly
• Promoting person-centred care so decisions reflect people’s wishes and needs
• Involving people’s families, advocates, or attorneys, where appropriate
• Supporting safeguarding and preventing abuse related to restrictions or denial of rights
• Updating local policy when legislation or national guidance changes
• Supporting staff with advice, supervision and reflective practice

Application to Adult Care Services

Understanding the law is the first step. Managers must apply these rules in practice.

Decision-Making

Services must demonstrate that each person is presumed able to decide for themselves. For example, if someone with dementia expresses clear choices about meals or outings, those choices should be respected unless reasons prove otherwise.

Capacity Assessments

If a person struggles to understand decisions, staff should help. This may mean:

• Breaking information into small, simple chunks
• Using pictures or practical examples
• Explaining things at different times of day when the person is most alert
• Involving trusted family or friends

If there is still evidence that someone cannot make their own decision, this must be clearly recorded.

Best Interests Meetings

When a decision has to be made for someone without capacity, a best interests process must be followed. The service should:

• Gather information about the person’s past choices and beliefs
• Involve people who know the person well
• Weigh up all available options, aiming for the least restrictive choice
• Document the process fully

Advocacy

When someone without capacity has no one to speak for them, an independent advocate must be involved. Managers need to know how to refer to advocacy services.

Safeguarding

If someone is at risk of harm, capacity assessment may be needed to decide if they can protect themselves or consent to certain situations. It is vital to link safeguarding practice with legislation on capacity.

Recording

Proper documentation is key. This includes:

• The process and outcome of each assessment of capacity
• Evidence of support given to help decision-making
• Details of best interests decisions and who was involved
• Notes on restrictions and any authorisations under DoLS
• Copies of LPAs or advance decisions kept on file

Without good records, services may face challenge from regulators or the courts.

Supporting Staff

Managers must make sure staff have the right knowledge and confidence:

• Provide regular training and refresher courses
• Discuss real-life scenarios and dilemmas in team meetings
• Keep up-to-date with changes in law or local processes
• Support new staff with supervision and mentoring

Regulatory Inspections

Bodies such as the Care Quality Commission (CQC) look closely at how services meet their duties under the MCA and DoLS. Managers should prepare:

• Evidence of compliance with legislation and codes of practice
• Examples of supported decision-making and least restrictive practice
• Up-to-date staff training records
• A clear local policy on mental capacity

Challenges and Good Practice

Managers may encounter:

• Families wanting decisions made for their loved one, even when that person has capacity
• Staff making ‘blanket’ decisions based on diagnosis (such as learning disabilities or dementia) instead of individual assessment
• Confusion over best interests processes, or skipping essential steps in a hurry
• Problems recognising when deprivation of liberty applies or failing to seek proper authorisation

Good practice includes:

• Challenging poor understanding or assumptions about capacity
• Reminding staff that rights do not disappear when someone moves into a care setting
• Encouraging advocacy and participation wherever possible
• Keeping decision-making focused on the individual, with practical support tailored to them

Final Thoughts

The law around mental capacity is clear. Every adult can make their own decisions unless proven otherwise. If someone cannot decide for themselves, staff must follow a strict process to protect the person’s rights and dignity. Keeping up with legislation, codes of practice, and local policy demands regular staff training, checks on practice, and good leadership. Proper application of these rules makes sure the people using the service are treated with fairness, respect, and choice at every stage.