Mental capacity

Contents

Mental capacity means being able to make specific decisions for yourself. The Mental Capacity Act 2005 (MCA) aims to ensure that individuals participate as fully as possible in all decisions relating to them. See GOV.UK

It protects those who cannot make their own decisions due to a mental disorder whether temporary or permanent. It applies to people aged 16 years and over. A person’s mental capacity may vary over time and depends on the type of decision that needs to be made.

Anyone caring for or supporting an individual may assess capacity where they are the person proposing the intervention. The assessment must be specific to the decision that needs to be made, and the time the decision needs to be made. Mental capacity is therefore time and decision specific, not a fixed notion of a person’s overall competence.

For health and care interventions and medical decisions, legally valid consent is always needed for treatment or examination; the doctor or healthcare professional who is proposing the intervention will have to assure themselves whether or not the person has capacity (ability) to give (or withhold) legally valid consent to the proposed intervention. Therefore ‘Consent’ and ‘Capacity’ can be viewed as two sides of the same coin.

The 5 principles of the Mental Capacity Act

These are as follows:

1. Presumption of capacity

Start off by thinking that everyone can make their own decisions. Ask yourself, “does it appear that this person can make this decision?” If it appears that they might not, then you have to think more carefully about whether they can understand, retain, use and weigh the relevant information, and communicate their decision.

2. Being supported to make their own decisions

Give the person all the support you can to help them make the decision. To justify an intervention, you must show that you have taken all practicable and realistic steps to help them to make the decision, such as explaining the risks and benefits to help them to make a choice and decide whether to give or withhold their consent. This might also include using a different form of communication, treating a medical condition which may be affecting the persons capacity (such as a urinary tract infection), or a structured learning programme to improve the persons capacity. However, if you have tried all practicable steps to support them to make the choice themselves, they are unlikely to regain capacity and/or the decision cannot be delayed, and support has not been successful then apply principles 4 and 5 (below).

3. Unwise decisions do not necessarily mean lack of capacity

Keep in mind that just because the person’s decision seems very unwise to you (for instance it’s very risky) that does not necessarily mean that they lack the capacity to make it.

Remember: one person’s seemingly unwise decision is another person’s calculated risk.

The following link is to a helpful article; How do I know if it’s an unwise mental capacity decision? Beth Yolland-Jones | 14 Oct 2022.

4. Decisions must be taken in the person’s best interests

The MCA provides a non-exhaustive checklist of factors that decision-makers must work through in deciding what is in a person’s best interests:

• find out the person’s past and present wishes, feelings, values and beliefs
• encourage and support participation
• identify all relevant circumstances
• consult others (see below – including anyone engaged in caring for the person, close relatives, friends, or others who take an interest in the person’s welfare) as far as practicable and appropriate.
• adopt the maxim ‘No decision about me without me’

Next of Kin (NoK) - remember, being regarded as ‘next of kin’ alone does not confer rights to make a best interests decision. There is no such thing as “next of kin” in law. The following link is to a very helpful guidance regarding NoK:

Next of Kin: Understanding decision making authorities.
PDF, 397kb, 4 pages

Any best interests decision must be made in the person’s best interest not solely the best interest of services or family or professionals.

5. Carefully consider actions to ensure the less restrictive option is taken

The decision maker should always consider whether it is possible to provide the intervention or support in a less restrictive way. Is there a less restrictive and or intrusive option that will still be in the person’s best interests? In other words, would what you are thinking of doing make the situation worse?

Mental capacity assessments

An assessment of a person’s capacity must be based on their ability to make a specific decision at the time it needs to be made (with support if necessary), and not their ability to make decisions in general. A person may be able to make decisions about some issues but not about others. For example, a person may be able to manage a small financial allowance to cover their day-to-day expenditure but not be able to make more complex decisions about their financial affairs, for example taking out a mortgage.

Therefore, the starting point must always be to assume that a person has the capacity (ability) to make a specific decision, unless it can be established that they cannot. The person does not have to ‘prove’ they have capacity.

A person’s capacity must always be assessed explicitly in terms of their capacity to make a specific decision at the time it needs to be made.

You must treat everyone equally. You cannot decide that someone lacks capacity based upon assumptions regarding age, appearance, about their condition or behaviour. For example, any scars, features linked to Down’s syndrome, muscle spasms caused by cerebral palsy, as well as aspects of appearance like skin colour, tattoos and body piercings, or the way people choose to dress (including religious dress).

The person must be placed at the very heart of the decision-making process. When considering a person’s capacity, it is important that steps are taken to try and support the person to make their own decision, and this can include asking the following questions:

• does the person have all the relevant information they need to make the decision?
• if they are making a decision that involves choosing between alternatives, do they have information on all the different options?
• would the person have a better understanding if information was explained or presented in another way?
• are there times of day when the person’s understanding or concentration is better?
• are there locations where they may feel more at ease?
• can the decision be put off until the circumstances are different, and the person concerned may be able to make the decision?
• can anyone else help the person to make choices or express a view (for example, a family member or carer, an advocate or someone to help with communication)?

Anyone assessing someone’s capacity to make a decision will need to apply the *test in the Mental Capacity Act

*Whilst it is often known as the ‘capacity test’, it is not a medical test, but rather a legal test.

It can be broken down into three questions:

1. The first question is, "Is the person able to make the decision – see below - (with support if required)?" If so, no further steps in the assessment process are needed.

2. If they cannot, the second question you must ask is "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?" (It doesn’t matter whether the impairment or disturbance is temporary or permanent). However, postpone the assessment if it is likely that the person will regain capacity for example medical treatment cures the delirium caused by an UTI and the decision is not urgent/life threatening.

Many factors can affect a person’s capacity such as:

• conditions associated with some forms of mental illness
• dementia
• significant learning disabilities
• the long-term effects of an acquired brain injury
• physical or medical conditions that cause confusion, drowsiness, or loss of consciousness
• delirium
• concussion following a head injury
• the symptoms of alcohol or drug use as well as some prescription medications
• capacity can also be affected by other illnesses, trauma, fear, or other factors

3. If so, the final question you must answer is: "Is the person’s inability to make the decision because of the impairment or disturbance?" The impairment or disturbance must be the reason the person cannot make the decision. This is called the "causative nexus".

What proof of lack of capacity does the Act require?

Anybody who claims that a person lacks capacity should be able to show reasonable belief, that the person lacks capacity to make a particular decision, at the time it needs to be made. This means being able to show that it is more likely than not. The person does not have to 'prove' that they have capacity.

Assessing ability to make a decision

As stated earlier, this can be broken down into three questions:

1. Is the person unable to make the decision?
2. Is there an impairment or disturbance in the functioning of the person’s mind or brain?
3. Is the person’s inability to make the decision because of the impairment or disturbance?

Another useful way to look at assessing a person’s ability to make a decision is to ask yourself:

“Can the person make this decision at the time it needs to be made?”

If the answer is ‘Yes’ that is the end of the process and you respect what they have decided, even if the decision appears to be ‘unwise’ such as withholding consent to medical treatment. Where the answer is either ‘no’ or ‘don’t know’ ask yourself;

“What appropriate help and support to make the decision should be given?”

This could be through providing information in a simpler way, such as using easier words or pictures, trying at different times of the day or when they are in better health or having a family member, friend or an independent person or advocate to help them express their choice.

A person is unable to make a decision if they cannot:

1. Understand information about the decision to be made (the Act calls this ‘relevant information’) including understanding the likely consequences of deciding one way or another, or not making the decision at all.
2. Retain that information in their mind (long enough to make the decision).
3. Weigh or use that information as part of the decision-making process, or
4. Communicate their decision (by any means).

The first three should be applied together, ideally in the form of conversation. If a person cannot do any of these three things, they will be judged as unable to make the decision, at the time it needs to be made.

The fourth only applies in situations where people cannot communicate their decision in any way, whether by talking, using sign language or any other means.

Ask yourself:

• “Can the family, friend, carer or advocate support the person’s communication?”
• “Would the services of a Speech and Language Therapist (SaLT) be helpful?”

The following 30 minute film shows all of the steps in action: Using the Mental Capacity Act in the community.

In conclusion, ask yourself:

1. “Does the person have general understanding of what decision they need to make and why they need to make it?”
2. “Does the person have a general understanding of the likely consequences of making, or not making, this decision, or deciding on one way or another?”

A conclusion that a person lacks capacity to make a particular decision must be based upon the legal test as per MCA 2005, and not on any other test a health or social care professional may use for other tasks. For instance:

• a doctor 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 common area of difficulty can be where a person gives coherent answers to questions, but it is clear from their actions that they are unable to give effect to their decision. This is sometimes called an impairment in their executive function. If the person cannot understand (and/or use and weigh) the fact that there is a mismatch between what they say and what they do when required to act, it can be said that they lack capacity to make the decision in question.

However, this conclusion can only properly be reached when there is clear evidence of repeated mismatch between what the person says and what they do.

This means that in practice it is unlikely to be possible to conclude that the person lacks capacity as a result of their impairment on the basis of one single assessment. You also cannot reach a conclusion that a person lacks capacity to make a decision simply on the basis of impaired executive function – you need to explain what this means in terms of their understanding or ability to use and weigh the information.

Understanding information about the decision to be made

It is important not to assess someone’s understanding before they have been given relevant information about a decision. Every effort must be made to provide information in a way that is most appropriate to help the person to understand. Quick or partial explanations are not acceptable unless the situation is urgent.

Relevant information includes:

• the nature of the decision
• the reason why the decision is needed, and
• the likely effects of deciding one way or another or not making a decision at all

Examples of effective communication to support the person understand the relevant information include:

1. A person with a learning disability may need somebody to read information to them. They might also need illustrations to help them to understand what is happening or they might stop the reader to ask what things mean. It might also be helpful for them to discuss information with an advocate.
2. A person with anxiety or depression may find it difficult to reach a decision about treatment in a group meeting with professionals. They may prefer to read the relevant documents in private. This way they can come to a conclusion alone and ask for help if necessary.
3. Someone who has a brain injury might need to be given information several times. It will be necessary to check that the person understands the information. If they have difficulty understanding, it might be useful to present information in a different way (for example, different forms of words, pictures or diagrams). Written information, audiotapes, videos and posters can help people remember important facts.

It is only after all practicable steps to support the person to make the decision for themselves have been unsuccessful can you look at taking the decision for the person in their best interest. You cannot make a best interest decision for someone who has the capacity to make the decision themselves.

Is the decision in the persons best interest?

Although there is no single definition of what would be in a person’s best interests, the Code of Practice gives a non-exhaustive checklist of things that must be considered when another person is making a decision. You need to weigh up these factors in order to work out what is in the persons best interest.

Assess whether the person might regain capacity

For example, after receiving medical treatment. If they might, could the decision be postponed? If so, do so.

Encourage participation

Do whatever's possible to encourage and support the person to take part and as far as they're able. At its heart the MCA is an empowering piece of legislation.

Find out the person's views

Including their past and present wishes and feelings - these may have been expressed in writing or through behaviours or habits.

And their beliefs or values – e.g. religious, cultural, moral and political that may influence the decision.

Identify all relevant circumstances

Try to identify the things the individual lacking capacity would take into account if they were making the decision themselves.

It is not substitute decision making which is where you put yourself in the situation and ask yourself, “if this was me what would I choose?”

Avoid discrimination

Don't make assumptions on the basis of age, appearance, condition or behaviour.

Consult others

If it is practical and appropriate to do so, consult other people for their views about the person's best interest. In particular consider consulting with:

• close relatives
• friends or
• others who take an interest in their welfare

It is particularly important to consult with:

• anyone named by the individual
• Lasting Power of Attorney (LPA)
• deputy appointed by the Court of Protection

What else do you need to consider?

Consent for treatment

Before any treatment or intervention on offer can be given to a person, legal authorisation must be obtained, ask yourself, “Under what legal framework?” For most this will be the authority of their legally valid consent. To be legally valid, consent must be with capacity, free from coercion and informed.

Remember, even where a Lasting Power of Attorney (LPA) for health and welfare is in place, do not assume that the person cannot consent to the particular decision at the time it needs to be made. Supported decision making remains, especially for clinical decisions.

Avoid restricting the person's rights

See if there are other options that may be less restrictive.

If restraint is being considered, as part of a best interest’s decision under the MCA, there needs to be a reasonable belief that it is necessary in order to prevent harm to the person. It needs to be a proportionate response to the likelihood of the person suffering harm, and the seriousness of that harm.

Deprivation of Liberty: all person’s aged 16 and over

Does the restriction constitute a deprivation of the person’s liberty?

If so, formal legal authorisation will be required, without which this deprivation of liberty will breach the person’s right to liberty under Article 5 of the European Convention of Human Rights - Right to liberty and Security (PDF, 895kb, 64 pages).

Currently, unless authorised under an alternative legal framework such as the Mental Health Act 1983, the deprivation of liberty will need to be authorised under the:

• Deprivation of Liberty Safeguards (person’s aged 18+ in a hospital or a registered care home) see: Deprivation of Liberty Safeguards (DoLS) at a glance
• or via the Court of Protection or High Court if:
  • they are aged 16/17, see: Deprivation of liberty and 16-17 year olds (researchinpractice.org.uk), or
  • are in a setting other than a hospital or care home.

Identifying if a person is being deprived of their liberty

Where all three elements are fulfilled, the person is being deprived of their liberty.

In order to answer the first point, ‘are they confined’ one must deploy the ‘Acid Test’ from the Supreme Court judgment of Cheshire West (2014) as follows:

• do they lack the mental capacity to give legally valid consent to the arrangements for them to receive care and/or treatment?
• are they under continuous supervision and control? This would equate to routine levels of observation in any typical care setting or regime.
• are they not free to leave; free to leave as, in go to live somewhere else if they so choose, not merely going to the shop and back? Also, it’s a hypothetical question, they don’t actually have to be actively trying to do so, it is what would happen if they were to try? Or, if they are immobile, what if someone came to take them away?

All three elements must be present to establish a ‘confinement’.

If they are, there may be a deprivation of liberty, there must be some lawful authority for this: making an application to the local authority (LA) for a Deprivation of Liberty Safeguards (DoLS) authoristion if the person is aged 18+ and in a hospital or care home; or

• for other settings and/or those aged 16 or 17 years, an application must be made to the Court of Protection or High Court.

The Ferreira exemption

However, there is an exemption to this known as the Ferreira exemption. In summary, Ferreira held that urgent life-saving physical treatment delivered in the same way as would be the case for any patient does not give rise to a deprivation of liberty merely because the person cannot consent to the arrangements because (for instance) they are unconscious after an accident.

The Mental Capacity (Amendment) Act 2019

The Mental Capacity (Amendment) Act (referred to as ‘the Act’ hereafter) would
both repeal and replace DoLS with a new scheme called the Liberty Protection Safeguards (LPS) applicable in all settings for people aged 16 years and over.

At the time of writing there is no date for when or if the Act will be implemented.

The MCA Code of Practice

Professionals and carers must have regard to the Code and record reasons for assessing capacity or best interests. If anyone decides to depart from the Code, they must record their reasons for doing so. Since the Code was published Case Law has developed practice in relation to MCA and DoLS/DoL and it is necessary to follow Case Law as opposed to the Code.

We hope that MCA Code of Practice will be updated soon. An updated version was published for consultation in 2022, but has not been brought into force, so the 2007 Code remains in effect, subject to the changing case law since then.

The MCA Code of Practice
PDF, 975KB, 301 pages

Record Keeping

The Code of Practice advised that assessments of capacity by professionals should be recorded. You should keep a record of the process for working out best interest relevant for each decision. If you are not following the written wishes of the person now lacking capacity the reasons must be recorded.

Deputies

Read more about Deputies

Advance Decisions

Learn more about Advance Decisions

Independent Mental Capacity Advocates (IMCA)

Independent Mental Capacity Advocates (IMCA)

Other resources

Mental Capacity Act 2005 Code of Practice, including the Liberty Protection Safeguards

The Toolkit - Mental Capacity Toolkit

Video: Using the Mental Capacity Act in the community

BMA Mental Capacity Act Toolkit

GMC Decision Making Tool

Royal College of Psychiatrists

Care Quality Commission

Council for Disabled Children Decision Making Toolkit

Council for Disabled Children Capacity and EHC plans

SCIE MCA resources

39 Essex Street MCA Newsletters
LPS: A visual summary of what you need to know (11 minutes)

Video: Liberty Protection Safeguards - Looking forwards - for social care | SCIE

Rapid Response Webinars - Essex Autonomy Project

capacityguide.org.uk

Capacity guide - The situation seems risky to me

Pan-London NHS: MCA lead toolkit

Liberty Protection Safeguards - elearning for healthcare (e-lfh.org.uk)

www.e-lfh.org.uk

NHS Learning Hub

www.hee.nhs.uk

Resources specifically regarding under 18-year-olds.

Video about 16/17-year-olds and the MCA

39 Essex Chambers have a guidance note about 16 to 17 year olds and the MCA: current guidance notes on capacity and best interests are here, along with a guidance note on deprivation of liberty and those under 18: www.39essex.com

This guidance may help in terms of thinking about capacity assessment, especially in terms of more complex cases: www.capacityguide.org.uk

Serious medical treatment guidance

The Council on Disabled Children's website resource about the framework for decision making
PDF, 393kb, 36 pages

Children - Which Decision Counts? – Part One: Medical Treatment Decision

Consent to treatment - Children and young people - NHS (www.nhs.uk)