THE MENTALCAPACITY ACT 2005

WHY THE ACT?

• No existing legal framework to protect• incapacitated people• Only safeguards relate to money & assets• Incapacity regarded as a “medical” decision

Who is the act for?

• Anyone could, but specifically:• Dementia• Learning Disability• Brain Injury• Severe Mental Illness• Deteriorating diseases• Anyone planning for the future

Capacity and decision making

• Common Law• Unrepresented • Represented by Advocates

Excluded decisions

• Other people can never make certain decisions on behalf of another person, regardless of the person’s capacity to make these decisions themselves.

• consent to sexual relations • consent to divorce or dissolution of a civil partnership • consent to a child being placed for adoption or to

making an adoption order • voting.

Legal tests under common law and other legislation

• some decisions will continue to be dealt with under common law

• There are several tests of capacity that have been produced following judgments in court cases. These are known as common law tests.

common law tests

• make a will • make a gift • enter into litigation• enter into a contract • enter into marriage.

Types of people

• Unrepresented• Represented (by advocates)• Anyone who currently has capacity can make

decisions for a time when they may lack capacity

• Life-sustaining treatment – must be in writing• All decisions must be respected.

ADVANCE DECISIONS

• Anyone who currently has capacity can make decisions for a time when they may lack capacity

• Life-sustaining treatment – must be in writing• All decisions must be respected by carers

UNREPRESENTED PERSONS

• Independent Mental Capacity Advocates• Court of protection

Court of Protection

• The Court of Protection is a specialist court for all issues relating to people who lack capacity to make specific decisions. The Court makes decisions and appoints deputies to make decisions in the best interests of those who lack capacity to do so.

Court of Protection

• The Court of Protection was created under the Mental Capacity Act 2005. It makes decisions, and also appoints other people (called Deputies) to make decisions, for people who lack the capacity to do this for themselves. These decisions are related to their property, financial affairs, health and personal welfare.

The Court of Protection can:

• decide whether a person ‘has capacity’ (is able) to make a particular decision for themselves

• make declarations, decisions or orders on financial or welfare matters affecting people who lack capacity to make these decisions

• appoint a Deputy to make ongoing decisions for people lacking capacity to make those decisions

• decide whether a Lasting Power of Attorney (LPA) or Enduring Power of Attorney (EPA) is valid

• remove Deputies or Attorneys who fail to carry out their duties

• hear cases concerning objections to register an LPA or EPA

REPRESENTED PERSONS

• Enduring Power of Attorney

now replaced by:

• Lasting Power of Attorney

Lasting Power of Attorney

• people wish to plan ahead and set out in advance what they would like to happen should they become unable to make decisions for themselves in the future

• LPA is an important legal document that enables a person who has capacity and is over 18 (Donor) to choose another person or people (Attorney(s)) to make decisions on their behalf.

2 different types of LPAs

• A property and financial affairs LPA is for decisions about finances, such as selling the Donor’s house or managing their bank account; and

• A health and welfare LPA is for decisions about both health and personal welfare, such as where to live, day-to-day care or having medical treatment.

• An Attorney is appointed to make decisions as if they were the Donor themselves. An Attorney must act in the Donor’s best interests and have regard to the Code of Practice.

• An LPA must be registered with the Office of the Public Guardian (OPG) before it can be used. An unregistered LPA will not give the Attorney any legal powers to make a decision for the Donor. The Donor can register the LPA while they have capacity, or the Attorney can apply to register the LPA at any time

The property and financial affairs Lasting Power of Attorney

• A donor can decide to give the Attorney(s) the power to make decisions about any or all of their property and financial affairs matters. This could include paying bills, collecting benefits or selling the donor’s house.

Property LPA

• The donor can appoint a property and financial affairs Attorney to manage their finances and property whilst they still have capacity as well as when they lack capacity.

Health and welfare Lasting Power of Attorney (LPA)

• A health and welfare Lasting Power of Attorney (LPA) allows the donor to plan ahead by choosing one or more people to make decisions on their behalf regarding their personal healthcare and welfare

HW LPA• These health and welfare decisions can only be taken by somebody

else when the donor lacks the capacity to make them.

• They can decide to give their Attorney the power to make decisions about any or all of their health and welfare matters.

• This could involve some significant decisions, such as: giving or refusing consent to particular types of health care, including medical treatment decisions; or whether they continue to live in their own home, or do with help and support from social services, or if they should go into residential care.

The MCA - How it works

• 5 principles• Assessment of capacity• Best interests

MAIN PRINCIPLES 1

• A person must be assumed to have capacity• unless it is established that they lack capacity

MAIN PRINCIPLES 2

• A person is not to be treated as unable to make a decision unless all practicable steps to help him or her to do so have been taken without success

MAIN PRINCIPLES 3

• A person is not to be treated as unable to make a decision merely because he/she makes an unwise decision

MAIN PRINCIPLES 4

• 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 his or her best interests

MAIN PRINCIPLES 5

• Before the act is done, or the decision is made, regard must be given 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 or freedom of action

Assessment of Capacity

ASSESSING CAPACITY

• TWO STAGES

– diagnostic test – functional test

THE DIAGNOSTIC TEST

1 Does the person have an impairment of the mind or brain, or is there some sort of disturbance affecting the way their mind or brain works? (Could be temporary or permanent)

2 If so, does that impairment or disturbance mean that the person is unable to make the decision in question at the time it needs to be made?

THE FUNCTIONAL TEST

• Does the person have a general understanding of the decision they need to make and why?

• Does the person have a general understanding of the likely consequences of making, or not making, this decision?

• Is the person able to understand, retain, use and weigh up the relevant information?

• Can the person communicate their decision?

BEST INTERESTS

• Is there an advance decision?• Talk to others who know the person• Take into account the person’s expressed

views, politics, spirituality, etc.• Could it be deferred till capacity returns?• If the person was able to take the decision for

themselves, what would they be likely to do?

What do you need to ask when assessing capacity

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

• If so: • Is the impairment or disturbance sufficient to

cause the person to be unable to make that particular decision at the relevant time?

Capacity? – consider following

• whether they are able to understand the information

• whether they are able to retain the information related to the decision to be made

• whether they are able to use or weigh that information as part of the process of making the decision.

• The person has to be able to do all three to make a decision and they have to be able to communicate that decision. This could include alternative forms of communication such as sign language or blinking an eye or squeezing a hand when verbal communication is not possible.

Factors to be considered in an assessment:

• General intellectual ability • Memory • Attention and concentration • Reasoning • Information processing – how a person interprets what

they are told • Verbal comprehension and all forms of communication • Cultural influences • Social context • Ability to communicate

Best interests

• The Mental Capacity Act (MCA) requires any decision or act made on behalf of a person who lacks capacity to be made in that person’s best interests.

• The MCA does not define best interests but identifies a range of factors that must be considered when determining the best interests of individuals

Acting in best interests

• Considering all relevant circumstances

• Regaining capacity – can the decision be put off until the person regains capacity?