The Mental Capacity Act 2005 (MCA) is a piece of legislation which sets out the legal framework and principles for when someone is assessed to lack the capacity to decide. It is also a way of protecting deprived people in England and Wales from being taken advantage of. This article will provide a comprehensive guide to understanding the framework of the MCA and a breakdown of the training and processes involved. This article will cover topics such as what the MCA covers, assessing capacity, the five principles of the MCA, what defines restraint, and how to gain a Deprivation of Liberty Safeguard (DoLs).
What is the Mental Capacity Act 2005?
The Mental Capacity Act 2005 (MCA) is a UK law designed to protect people who may lack capacity to decide for themselves. The MCA places a legal duty on those working with vulnerable adults to ensure that decisions made on their behalf are made in their best interests and are as close as possible to the decisions that the person in question would have made for themselves if they could do so.
The MCA applies to anyone aged 16 or over and sets out five key principles that must be followed when deciding on behalf of a person who lacks capacity:
- A person must be presumed to have capacity unless it is established otherwise.
- A person must be supported to make their own decisions so far as possible.
- A person must not be treated as unable to decide merely because their decision is not what is believed to be the best or most appropriate one.
- An unwise decision is not necessarily evidence of a lack of capacity.
- Before deciding on behalf of a person who lacks capacity, all practicable steps must have been taken to encourage and support them to make their own decisions.
The MCA also sets out a series of safeguards to help protect vulnerable adults, including the requirement for people deciding on behalf of someone else to consider all relevant information, seek expert advice where appropriate and consider the person’s wishes and feelings.
In order to ensure that all staff working with vulnerable adults understand the MCA and the legal requirements it places on them, it is essential that training is provided on the MCA and related topics. This training should be tailored to the particular roles and responsibilities of the individual staff member and should include topics such as understanding capacity, making best interest decisions, safeguarding and promoting wellbeing, understanding rights and understanding legal requirements.
By providing staff with the training regarding the MCA, it is possible to ensure that decisions made on behalf of vulnerable adults are made in their best interests and are as close as possible to the decisions that the person in question would have made for themselves if they could do so.
What does the Mental Capacity Act 2005 cover?
The Mental Capacity Act 2005 (MCA) is the legislation that governs decisions about the care and support for people who may lack the mental capacity to decide for themselves. It protects vulnerable individuals and ensure that their best interests are always taken into consideration. The Act promotes the desire for people to make their own decisions wherever possible and makes clear the laws and standards of practice which must be followed where this is not possible.
The MCA outlines the principles which must be followed to ensure any decision about a person who lacks capacity is made in their best interests. It is important that anyone involved in the assessment of a person’s capacity has a good understanding of the MCA and the principles of best interest decision making.
The main sections of the Mental Capacity Act 2005 cover:
- Assessing capacity – this includes how to determine whether a person has the capacity to make a particular decision.
- Best Interests – the principles and guidance for deciding on behalf of an individual who lacks the mental capacity to do so.
- Deprivation of Liberty Safeguards – this relates to situations where it is necessary for a person to be in a secure environment for their own safety, and the rules and guidance for their care.
- Advance Decisions – a legal document which allows a person to document their wishes in advance if they should lack mental capacity in the future.
- Lasting Powers of Attorney – how to appoint a person to decide on another person’s behalf if they should lose capacity
- Court of Protection – a legal forum used to settle disputes or if a person needs help to manage their affairs if they lack the mental capacity to do so.
The Mental Capacity Act training guide is available to give anyone working with vulnerable people a comprehensive understanding of the legislation and how to apply it in various scenarios. It is important for everyone to understand their responsibilities under the MCA to ensure that the vulnerable individuals in their care are always given the best possible care and support.
What does it mean to lack capacity?
Under the Mental Capacity Act (MCA), a person may lack the capacity to decide if they cannot understand the information relevant to the decision they are making, or they cannot weigh up the information to reach a decision, or communicate their decision.
A lack of capacity may be temporary or permanent, and can relate to all types of decision making, including medical treatment, financial matters, and legal decisions. The assumption is that everyone has capacity, unless it is established that they do not.
The MCA sets out the legal principles for assessing whether a person has the capacity to make a decision for themselves. It is important to note that a person may have the capacity to make some decisions, but not others.
When assessing capacity, a person will be asked to demonstrate their understanding of the relevant information and their ability to weigh up that information. They must also be able to express their decision. If a person is not able to do these things, then they can be considered to lack capacity for the decision being made.
It is important for organisations and individuals to have a good understanding of the MCA, so that people have the best possible opportunity to make decisions for themselves, and their wishes and autonomy are respected. Organisations should provide training for their staff on the MCA, so they are aware of the legal requirements and how to assess capacity in relation to their operations.
Mental Capacity Act 2005 Code of Practice
The MCA Code of Practice provides practical guidance on the application and interpretation of the MCA. This section provides an overview of the MCA Code of Practice and its importance to those undertaking MCA training.
The MCA Code of Practice is a statutory guide that provides a detailed explanation of the principles, rights and duties of the MCA, and also includes information on the assessment of capacity and decision-making processes. Also included are examples of good practice for those who support individuals who lack capacity and for those who decide on the provision of care and treatment on behalf of those lacking capacity.
The Code of Practice promotes best practice in the assessment and management of the mental capacity of an individual who may lack capacity. It emphasises the need for clear decision-making processes and outlines the need to involve service users and their families in decision-making.
The Code of Practice is an important part of MCA training, particularly for those who are caring for or supporting individuals who may lack capacity. It is important that people who undertake MCA training have a thorough understanding of the principles and guidance set out in the Code of Practice. This includes the need to assess an individual’s mental capacity, to respect and protect an individual’s rights, to involve them in decision-making and to ensure that decisions are made in their best interests.
In summary, the MCA Code of Practice is an important part of any MCA training, as it provides an invaluable guide to the principles and duties of the MCA as well as best practice standards, which should be followed by those who care for or support individuals who may lack capacity.
How do you assess a persons capacity?
To assess a person’s capacity, it is important to understand the five statutory principles of capacity:
- 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 decide unless all practicable steps to help them do so have been taken without success.
- A person is not to be treated as unable to decide merely because they make an unwise decision.
- An act done, or decision made, under the MCA 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.
In assessing a person’s capacity, it is important to consider the decisions they may need to make, such as:
- financial decisions
- medical treatment decisions
- decisions about their residence
- decisions about their care
When assessing capacity, it is important to consider any person’s mental disorder, brain injury or dementia, or any other physical or mental impairment, or disability. It is also important to consider the nature of the decision they need to make, their ability to communicate and to understand relevant information, assess the risks involved with the decision and communicate their own wishes.
Mental Capacity Act training can help professionals to understand how to assess a person’s capacity, and how to support those who lack capacity. The training covers a range of topics, such as understanding capacity and best interests, the role of the court of protection, and the practical implications of the MCA.
Principle 1: A presumption of capacity
The Mental Capacity Act (MCA) 2005 has enshrined in law the principle of presumed capacity. This principle states that all adults aged 16 or over must be presumed to have the capacity to make decisions for themselves, unless it can be established that they lack mental capacity to do so. As a provider of MCA training, it is important to ensure that this principle is firmly established and understood by all staff delivering care and support services.
The MCA provides a legal framework for the decision-making process and clarifies that a lack of capacity cannot be assumed simply because an individual has a learning disability, mental health difficulty or other condition. Instead, it must be determined through an appropriate assessment.
The MCA is also very clear that the best interests of the individual must be considered when deciding and that any decision made must be the least restrictive of the individual’s rights and freedoms.
When providing MCA training, it is important that staff understand everyone should be treated as an individual, with respect and dignity, and their ability to decide should not be limited prematurely. Equally, if it can be determined that an individual does lack capacity, then all reasonable steps must be taken to support them to make their own decisions, before any decisions are made on their behalf.
Finally, it is important for staff to understand that the MCA should protect the rights of individuals who lack capacity and promote their autonomy and independence as far as possible. For this reason, staff must have a good understanding of the MCA and the principles set out in it. They should also know the roles and responsibilities of all relevant parties, including the individual, the carers and the professional assessor.
MCA training should ensure that staff are well-versed in the principles of the MCA, and that they can show a high level of understanding of the legislation and its implications. This should enable staff to work with individuals who lack capacity in a way which respects and safeguards their rights.
Principle 2: Individuals being supported to make their own decisions
The Mental Capacity Act (MCA) 2005 puts the emphasis on supporting and empowering an individual to make their own decisions. Principle 2 of the MCA states individuals must be supported to make their own decisions so long as they have the mental capacity to do so. This includes supporting individuals to weigh up relevant information in order to reach a reasoned choice and decision.
This must be achieved by respecting the individual’s wishes and feelings, encouraging their participation in decisions and providing them with information in an accessible format. In order to comply with the MCA, individuals must be given sufficient time to reach a decision and challenging an individual’s decisions should only be done if absolutely necessary and any restrictions placed on individuals’ freedom of choice must be adequately justified.
It is essential that all individuals involved with supporting individuals to make their own decisions are adequately trained to do so. Mental Capacity Act training includes understanding the key concepts of the MCA, how to assess mental capacity and how to provide support in decision making. Training should also include how to apply the principles of the MCA in the individual’s best interests, how to identify and recognise any risks associated with any decision made, and how to use appropriate forms of communication to support the individual.
It should be noted that the MCA does not directly provide any guidance on how to support individuals to make their own decisions but only that it is essential to do so. It is important to consider the relevant legislation and guidance when providing support and to ensure that individuals have access to legal advice.
Mental Capacity Act training is essential to ensure that individuals are supported to make their own decisions in line with the MCA. Training should be tailored to suit the individual’s needs, context and circumstances and should consider any legal and ethical implications of supporting individuals to make their own decisions. By providing adequate and appropriate training, individuals can be empowered to make their own decisions with the right support in place.
Principle 3: Unwise decisions
Principle 3 of the Act states that decisions made on behalf of individuals who lack capacity must be based on the best interests of that individual. Unwise decisions must not be made even if the individual appears to want it.
Mental capacity to make a decision should be assessed in relation to each particular decision. Even if an individual only has limited mental capacity, they should still be provided with opportunities to make their own decisions as much as possible. If the individual does not have sufficient capacity, a decision-maker must take into account the individual’s wishes and feelings as well as the advice of reputable professionals.
It is important to consider whether any alternative action or decision might be a better alternative than the one that appears to be supported by the individual who lacks capacity. It can be difficult to determine if a decision is unwise, so it is essential for those involved in decision-making to be appropriately trained. This training should include an understanding of the MCA, how to assess capacity, the processes for making best-interests decisions and how to differentiate between unwise and wise decisions.
For example, if an individual lacks capacity to make decisions about their finances but appears to want to buy an expensive item, it is important for the decision-maker to consider alternative actions before making the purchase. They should consider if the individual is being pressured into the purchase, if the item is necessary, if other products are available that may be more suitable, and if the individual has a need to make the purchase.
Generally, decisions made on behalf of the individual should be guided by the principle that the individual’s best interests are the primary consideration. It is not enough to simply accept the individual’s wishes and feelings, even if they appear to be strongly expressed. Appropriate training and understanding of the Mental Capacity Act is essential to ensure that decisions made on behalf of an individual are not unwise.
Principle 4: Best interests
Principle 4 of the Mental Capacity Act (MCA) states that anyone who is making a decision on behalf of an individual who lacks mental capacity must act in their ‘best interests’. This means that decisions must take into account the individual’s past and present wishes, beliefs, values and preferences, as well as the views of family and friends.
When determining what a person’s best interests are, it is important that decision makers take into account all relevant factors. This includes considering whether it is necessary for a particular decision to be made at all, and whether the decision should be made in private or in the presence of family and friends.
The MCA requires that all reasonable steps must be taken to help a person make their own decisions, so decision makers must assess the capacity of the person to make the decision themselves and provide appropriate support if they are deemed to lack capacity. If the person has capacity to make the decision then the decision should be respected.
When a decision is made on behalf of someone else, the decision maker must be able to demonstrate that they have taken all reasonable steps to ascertain the person’s views, wishes, feelings and values, and have taken them into account when making their decision.
The MCA also states that no decision made on behalf of someone who lacks capacity should result in them being deprived of their liberty, unless it is appropriate and necessary to do so in their best interests.
When conducting any kind of training relating to the MCA and best interests, it is important to ensure that all participants understand the legal basis behind the principle of best interests and how to apply it in practice. This includes understanding how to assess a person’s capacity to make the decision themselves and identify appropriate strategies for helping the person to make decisions themselves. It is also important to emphasise that all reasonable steps must be taken to involve the person in the decision-making process and take account of their views, wishes, feelings and values.
Principle 5: Less restrictive option
Principle 5 of the Mental Capacity Act (MCA) is an important element of the overall law, designed to ensure that individuals receive the most appropriate care, regardless of their mental capacity. This principle gives individuals the right to have the least restrictive option available to them for decision making and treatment.
The MCA requires that any proposed care or treatment must be the least restrictive option, meaning that there should be minimal interference with the individual’s freedom and autonomy, or the principle should not be applied. This includes ensuring that the least intrusive and least restrictive intervention is used and that any restrictions to the individual’s liberty are proportionate and necessary.
The MCA states that, “the person deciding must be satisfied, so far as is reasonably practicable, that the intervention in the person’s life to whom it relates that is least restrictive of the person’s rights and freedom of action should be used.”
It is important that any professional responsible for decision-making or implementing care and treatment options are aware of this principle of the MCA. Part of understanding and helping to ensure that this principle is adhered to is understanding what can be considered as a “less restrictive option”. This is why it is important to have training and education for those responsible for making decisions about care and treatment, with a focus on and understanding of the MCA’s Principle 5 – the less restrictive option.
What makes up a “less restrictive option”? Those deciding and implement care and treatment plans should consider:
- The least intrusive intervention should be used
- Any restrictions to the individual’s liberty are proportionate and necessary
- There should be minimal interference with the individual’s freedom of action
- The individual’s right to control their own life should be respected
- The plan should only be extended if it is in the best interests of the person
- Consideration should be given to any existing treatment options
- Consideration should be given to any alternative treatments
- Any financial costs should be considered
- The individual’s wishes and feelings should be considered
- The individual’s views should be considered when decide
The definition of restraint s6(4) in the Mental Capacity Act 2005
Section 6(4) of the MCA defines what counts as restraint and provides a framework for people dealing with cases of mental incapacity. According to the Act, restraint is “the intentional or reckless use of force that restricts a person’s freedom of movement and which protects them, another person, or property from harm”.
Given the broad scope of the definition, any action which is likely to restrict a person’s freedom of movement has to be treated as restraint under the MCA. This means that any care practitioner must have a comprehensive understanding of the MCA’s definition of restraint, in order to ensure that activities involving people with mental incapacity are carried out appropriately.
Mental Capacity Act training is essential for anyone working with people who lack capacity. By giving practitioners the knowledge and understanding of the MCA, the training can help ensure that all care practitioners are aware of their responsibilities under the MCA, and have the tools to manage any potentially risky situations effectively.
The Mental Capacity Act training aims to equip care practitioners with the skills they need to be confident in their application of the MCA, including how to assess and assess risk, act in the best interests of a person with mental incapacity, and recognise and manage any potential cases of restraint, as defined in Section 6(4). By ensuring everyone involved in providing care is informed and confident in the application of the MCA, it can help to ensure that those in need receive the best possible care.
What is the process for DoLs?
The process for Deprivation of Liberty Safeguards (DoLs) under the Mental Capacity Act (MCA) is a complex but necessary one. DoLs are a system of safeguards that protect the rights of people with significant need for care and support, who lack the mental capacity to decide about their social care or treatment.
Under the MCA, people may not be deprived of their liberty unless there is a legal basis. DoLs ensure that people who are deprived of their liberty are appropriately cared for and their rights are respected.
The MCA stipulates that in order to legally deprive a person of their liberty, organisations must seek permission from the courts. This permission is granted through the ‘standard authorisation’ process. It is important to ensure that prior to the ‘standard authorisation’ process being started, the person in question has been assessed to determine that they lack the capacity to decide about their care or treatment.
Organisations must also ensure that DoLs are in place for the person in question and that certain assessments, such as a best interests assessment and a risk assessment, are completed. This is to ensure that the person is not being subjected to deprivation of liberty unnecessarily, or against their wishes.
Organisations are also responsible for ensuring that DoLs supervised by them are regularly reviewed. This should be done at least annually, but more frequently if circumstances change.
Given the complexity of the process for DoLs, it is important for organisations to ensure that their staff are supported with training and advice. The MCA Training Guide can provide organisations with the information and advice they need to ensure that their staff have a good understanding of the process for DoLs, and can effectively manage them within their organisation.
In conclusion, the Mental Capacity Act 2005 (MCA) is a vital piece of legislation in the UK that promotes the well-being of those who lack the capacity to decide for themselves. The MCA Code of Practice outlines five principles of the MCA which must be followed when assessing a person’s capacity. These include the presumption of capacity, enabling of individuals to make their own decisions wherever possible and considering their best interests when necessary. The MCA also outlines what makes up restraint in a care setting and sets out a detailed process for making DoLs. It is therefore essential for all those working in the care sector to be aware of the Mental Capacity Act 2005, the MCA Code of Practice and their responsibilities when caring for those who lack capacity.