The Mental Capacity Act

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What is it and how does it work?

The Mental Capacity Act 2005 (MCA) came in to force in October 2007 and is one of several pieces of legislation, which together with the Mental Health Act 1983 (MHA), the Domestic Violence, Crime and Victims Act 2004 is designed to protect and make sure that individuals who lack mental capacity have the correct decisions made for them in terms of care and treatment.

The MCA applies to all those over the age of 16 who have been diagnosed with an impairment or disturbance of the brain (this also includes someone under the influence of illicit drugs or alcohol). This could include: dementia, a severe learning disability, a brain injury, a mental health condition, a stroke or due to unconsciousness caused by an anesthetic or sudden accident. The MCA also empowers people to be able to plan for the future while they still have the capacity to do so by way of Lasting Powers of Attorney that can cover both financial and health and welfare matters.

One of the main principles of the MCA is a presumption of capacity; all individuals are deemed to be mentally capable. You cannot be treated as unable to make a decision unless all practical steps to help you make that decision have failed. As part of that process a formal Mental Capacity assessment may be required.

The mental capacity assessment is a two stage process to assess the decision specific capacity of the individual. The first stage asks the following two questions:

Question 1: “What is the impairment or disturbance of the brain/mind?”

Health professionals use this question to form the basis of the clinical diagnosis.

Question 2: “Does the identified disturbance or impairment affect the decision making ability?”

A four part functional test will help the health care professional in answering question 2 above:

  1. Does the person understand the decision to be made?
  2. Is the person able to retain the information given about the specific decision?
  3. Is the person able to weigh up the consequences of making that decision?
  4. Is the person able to communicate the decision made by any means?

If the person is unable to process or execute 1 of the 4 questions they will be deemed as lacking capacity under the MCA.

The second stage covers making decisions that are in the best interests of that incapable person.

The Best Interests Decision

If a person is deemed to be lacking capacity to make a specific decision, the health professional has to make a Best Interests Decision on the patient’s behalf. The Best Interests Decision must follow a designated check list and must take into account the known and post wishes, feelings, beliefs and values of the individual patient. The health professional must also seek the views of those interested in the welfare of the patient. Equally if an attorney or a Court of Protection deputy has been appointed, their views must be taken into account, and in certain circumstances, their views will prevail.

Capacity is deemed as fluctuating, it can change on a daily or even hourly basis. The Mental Health team at Hunt & Coombs often has to look into the reasons why some clients are deemed to lack capacity and require treatment under either – the MHA or the MCA.

In cases where physical treatment is being received by the patient (such as for heart disease and blood pressure issues) the MCA would still apply. The health professionals would need to use the 2 stage test to assess the patients’ capacity to consent or refuse treatment for their specific condition. Similarly, any Attorney or Deputy may have the power to determine treatment choices where capacity is lacking.

Our Mental Health team has the expertise to challenge both the MHA and the MCA. If you or a relative is currently undergoing or has previously been told that a capacity test is needed our expertise and understanding of both Acts can be called upon to provide sound legal advice to help you through the process. We will make sure the right decisions are made at the right time for you or your family.

If you require help or assistance concerning a Lasting Powers of Attorney please contact our Wills, Trusts & Probate team on 01733 882800 or email at: [email protected] .

For further legal help or advice on the Mental Health Act please contact our Mental Health team at: [email protected] or call 01733 882800.

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