The Mental Capacity Action 2005 (MCA) has been in force since 2007 and applies to England and Wales. The primary purpose of the MCA is to promote and safeguard decision-making within a legal framework. It does this in two ways:
- By empowering people to make decisions for themselves wherever possible, and by protecting people who lack capacity by providing a flexible framework that places individuals at the heart of the decision-making process.
- By allowing people to plan ahead for a time in the future when they might lack the capacity.
The Mental Health and Justice Project has produced a capacity guide (opens new window), this provides prompts for clinicians and social care professionals assessing capacity as to questions to ask and relevant considerations to take into account.
The Office of the Public Guardian have also produced guidance (opens new window) on Making decisions A guide for people who work in health and social care.
Key messages
- The MCA 2005 applies to everyone involved in the care, treatment and support of people who are:
- aged 16 and over living in England and Wales.
- unable to make all or some decisions for themselves.
- The MCA:
- is designed to protect and restore power to those vulnerable people who lack capacity.
- supports those who have capacity and choose to plan for their future - this is everyone in the general population who is over the age of 18.
- All professionals have a duty to comply with the Code of Practice (opens new window). It also provides support and guidance for less formal carers.
- The Act's five statutory principles are the benchmark and must underpin all acts carried out and decisions taken in relation to the Act.
- Anyone caring for or supporting a person who may lack capacity could be involved in assessing capacity.
- The MCA is designed to empower those in health and social care to assess capacity themselves, rather than rely on expert testing - good professional training is key:
- Understanding and using the MCA supports practice - for example, application of the Deprivation of Liberty Safeguards.
The five key principles
The Act is underpinned by five key principles (Section 1, MCA). It is useful to consider the principles chronologically: principles 1 to 3 will support the process before or at the point of determining whether someone lacks capacity. Once you've decided that capacity is lacking, use principles 4 and 5 to support the decision-making process.
Principle 1: A presumption of capacity
Every adult has the right to make his or her own decisions and must be assumed to have capacity to do so unless it is proved otherwise. This means that you cannot assume that someone cannot make a decision for themselves just because they have a particular medical condition or disability.
Principle 2: Individuals being supported to make their own decisions
A person must be given all practicable help before anyone treats them as not being able to make their own decisions. This means you should make every effort to encourage and support people to make the decision for themselves. If lack of capacity is established, it is still important that you involve the person as far as possible in making decisions.
Principle 3: Unwise decisions
People have the right not to be treated as lacking capacity merely because they make a decision that others deem 'unwise'. Everyone has their own values, beliefs and preferences which may not be the same as those of other people.
Principle 4: Best interests
Anything done for or on behalf of a person who lacks mental capacity must be done in their best interests.
Principle 5: Less restrictive option
Someone making a decision or acting on behalf of a person who lacks capacity must consider whether it is possible to decide or act in a way that would interfere less with the person's rights and freedoms of action, or whether there is a need to decide or act at all. Any intervention should be weighed up in the particular circumstances of the case.
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