Mental Health Capacity Act
The Mental Capacity Act 2005 sets out the law in relation to some of the most vulnerable members of society - those who lack mental capacity to make decisions about their care. It clarifies the previous common law and sets out important principles about the assessment of capacity and the care of those who lack it. It also introduces new safeguards to protect those incapacitated people whose care, in hospital or in a care home, requires that they are deprived of their liberty – the Deprivation of Liberty Safeguards (DOLS).
The definition of mental capacity and the five principles of the Mental Capacity Act 2005:
The principles of the Mental Capacity Act are set out below, they apply to all assessments and decisions made under the Act.
- A person must be assumed to have capacity unless it is established that he lacks capacity
- A person is not to be treated as unable to make a decision unless all practicable steps to help him do so have been taken without success.
- A person is not to be treated as unable to make a decision merely because he makes an unwise decision
- An act done, or decision made, under the Act for or on behalf of a person who lacks capacity must be done, or made, in his 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 freedoms. The principles can be remembered by the acronym PLUMB – Presumption of capacity, Least restrictive option, Unwise, Maximise capacity, Best interests.
The Mental Capacity Act makes it clear that there are no global assessments of capacity. The assessment of capacity is specific to the decision to be made and the time it needs to be made. A person may have capacity in some areas but not in others – for example, may be able to manage their money to do their weekly shop, but may not be able to decide how to invest their life savings.
The definition of mental capacity is set out in Sections 2 and 3 of the Act, which provide for a “two stage test”.
Stage 1 - Does the person have a disturbance or impairment of the mind or brain?
This is very broadly defined – it could be permanent, (for example learning disability, severe head injury) or temporary (intoxication, less severe head injury). It could include mental illness such as depression and schizophrenia, and physical conditions such as low blood sugar or liver failure leading to confusion.
If a person does not have such an impairment, then they do have mental capacity. If they do have an impairment or disturbance, then the next stage of the test applies;
- Does the disturbance or impairment make them unable to;
- Understand information relevant to the decision?
- Retain that information?
- Use or weigh up the information as part of the decision-making process?
- Communicate their decision?
If they pass these tests, they have capacity in the matter being considered even though they have an impairment or disturbance of mind or brain. If they fail on any one of the tests, then they lack capacity in that matter. A decision will have to be made on their behalf, in their best interests.
HealthEast are committed both to the letter and the spirit of the Mental Capacity Act 2005 and have taken active steps to ensure this commitment is reflected throughout the organisation. The appointment of a Mental Capacity Act Manager in July 2008 has meant that awareness of both the Act and the Deprivation of Liberty Safeguards (DOLS) is high throughout HealthEast. As well as ensuring that both policies and practice are concordant with the MCA, the Mental Capacity Act Manager provides training on all aspects of the Act and the DOLS, and can be consulted by staff for advice and guidance. He maintains an awareness of developments in case law and the Court of Protection, to ensure that changes and developments in the law about people lacking capacity are reflected throughout HealthEast where necessary.
As well as its “in house” provision, HealthEast maintains close links with statutory and voluntary organisations whose remit includes the care of those who lack capacity to make care decisions. Where appropriate, staff engage the help of the Independent Mental Capacity Act Advocate service (IMCAs). Because HealthEast's area includes parts of Norfolk and Suffolk, links to both services are given below. Please note that the IMCA service only accepts referrals from health professionals. Members of the public who believe a relative or patient needs an IMCA should ask a professional to make a referral.
Tel 01449 771590
Tel 0845 017198