Mental Capacity and Decision Making
This comprehensive guide explains mental capacity and decision-making under the UK's Mental Capacity Act 2005. It covers the principles, assessment process, making best interests decisions, and the importance of Lasting Powers of Attorney (LPAs) for future planning. Practical advice and essential signposting to professional services are included to support families navigating these sensitive legal and care considerations.
Important
Understanding Mental Capacity and Decision-Making in the UK
Navigating the complexities of mental capacity and decision-making can be a sensitive and challenging journey for families. At Care Directory UK, we understand the emotional and practical considerations involved when a loved one's ability to make their own decisions might be in question. This comprehensive guide aims to shed light on the Mental Capacity Act 2005 (MCA) in England and Wales, offering clear, actionable information to help you understand this crucial area of law and how it protects individuals.
The Mental Capacity Act 2005 is designed to protect and empower individuals who may lack the mental capacity to make their own decisions about their care, treatment, property, or affairs. It provides a legal framework for assessing capacity and making best interests decisions on behalf of someone who cannot do so themselves. It's important to remember that the MCA starts with a presumption of capacity – meaning everyone is assumed to have the ability to make their own decisions unless proven otherwise.
What is Mental Capacity?
Mental capacity refers to a person's ability to make their own decisions. The MCA defines a person as lacking capacity in relation to a matter if, at the material time, they are unable to make a decision for themselves in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.
Crucially, this impairment or disturbance doesn't have to be permanent. It could be due to a range of conditions, including dementia, a learning disability, a brain injury, a stroke, or even temporary conditions like delirium or severe depression. The key is whether it affects their ability to make a specific decision at a specific time.
The Five Key Principles of the Mental Capacity Act (MCA)
The MCA is underpinned by five core principles that must always be applied when considering someone's mental capacity:
- Presumption of Capacity: Every adult has the right to make their own decisions and must be assumed to have capacity unless it is established otherwise.
- Practical Steps to Support Decision-Making: A person is not to be treated as unable to make a decision unless all practicable steps to help them to do so have been taken without success. This means providing information in an accessible way, using simple language, and considering the best time and place for discussions.
- Unwise Decisions: An unwise decision does not mean a lack of capacity. Just because someone makes a decision that others might consider unwise or eccentric, it doesn't mean they lack the capacity to make it.
- Best Interests: 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 their best interests.
- Least Restrictive Option: Before an act is done, or a 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 freedom of action.
Assessing Mental Capacity: The Two-Stage Test
When there are concerns about someone's ability to make a specific decision, a formal mental capacity assessment may be needed. This is not a general assessment of a person's overall intelligence or competence, but a specific assessment related to a particular decision at a particular time. The MCA sets out a two-stage test for assessing capacity:
- Stage 1: Diagnostic Test - Is there an impairment of, or a disturbance in the functioning of, the mind or brain? This could be a recognised medical condition (like dementia or a learning disability) or a temporary state (like confusion due to illness or medication). If there is no such impairment or disturbance, the person is deemed to have capacity.
- Stage 2: Functional Test - Is the person unable to make a specific decision because of that impairment or disturbance? To be able to make a decision, a person must be able to:
- Understand the information relevant to the decision.
- Retain that information long enough to make the decision.
- Use or weigh that information as part of the process of making the decision.
- Communicate their decision (by any means, e.g., speaking, sign language, blinking).
If a person is unable to do any one of these four things because of the impairment or disturbance identified in Stage 1, then they are deemed to lack capacity for that specific decision.
Making Decisions in a Person's Best Interests
If a person is assessed as lacking capacity for a specific decision, then any decision made on their behalf must be in their 'best interests'. The MCA provides a checklist of factors that must be considered when determining best interests:
- Encourage the person's participation as much as possible.
- Consider the person's past and present wishes and feelings (including any written statements made when they had capacity).
- Consider the beliefs and values that would be likely to influence their decision if they had capacity.
- Take into account any other factors the person would be likely to consider if they were able to do so.
- Consult with others who are involved in the person's care or interested in their welfare (e.g., family, friends, carers).
- Avoid discrimination.
- Consider whether the decision can be achieved in a way that is less restrictive of the person's rights and freedom of action.
It's important to note that 'best interests' does not mean what others think is best, but what is best for the individual based on their unique circumstances and preferences. This collaborative approach ensures that decisions are person-centred and respectful.
Planning Ahead: Lasting Powers of Attorney (LPAs)
One of the most powerful tools for individuals to maintain control over their future decisions, even if they lose capacity, is a Lasting Power of Attorney (LPA). An LPA is a legal document that allows a person (the 'donor') to appoint one or more trusted people (the 'attorneys') to make decisions on their behalf.
There are two types of LPA:
- Property and Financial Affairs LPA: This allows attorneys to manage financial matters, such as bank accounts, investments, property, and paying bills. It can be used while the donor still has capacity (with their permission) or once they have lost capacity.
- Health and Welfare LPA: This allows attorneys to make decisions about healthcare, medical treatment, daily routine (e.g., washing, dressing, eating), and where the donor lives. This type of LPA can only be used once the donor has lost the mental capacity to make these decisions themselves.
LPAs must be registered with the Office of the Public Guardian (OPG) to be legally valid. This process can take several weeks or even months, so it's advisable to apply well in advance.
What if there's no LPA and someone lacks capacity?
If a person loses mental capacity without having an LPA in place, then family members cannot automatically make decisions on their behalf. In such cases, an application may need to be made to the Court of Protection to appoint a 'deputy'.
- Deputyship: A deputy is appointed by the Court of Protection to make ongoing decisions for someone who lacks capacity. Deputies can be appointed for property and financial affairs, or for personal welfare, or both. The process of applying for deputyship can be complex, time-consuming, and costly, which is why LPAs are strongly encouraged for proactive planning.
Deprivation of Liberty Safeguards (DoLS) and Liberty Protection Safeguards (LPS)
When a person who lacks mental capacity is deprived of their liberty in a care home or hospital to keep them safe, specific legal safeguards must be in place. In England and Wales, these are currently the Deprivation of Liberty Safeguards (DoLS), which apply to those aged 18 and over in hospitals or care homes.
DoLS are designed to ensure that any deprivation of liberty is lawful, necessary, and in the person's best interests, and that there are independent checks and balances. They provide a legal framework for authorising such arrangements and ensuring the person's rights are protected.
The Liberty Protection Safeguards (LPS) are set to replace DoLS. LPS will extend to a wider range of settings (including supported living and private homes) and a broader age group (16+). While the implementation of LPS has been delayed, it's important to be aware that the legal framework for protecting people's liberty is evolving.
Practical Guidance for Families
- Talk Openly and Early: Discuss wishes and preferences with loved ones while they still have capacity. This can make future best interests decisions much clearer.
- Consider LPAs: Encourage family members to make Lasting Powers of Attorney. This is the most straightforward way to plan for potential future loss of capacity.
- Understand the MCA Principles: Familiarise yourself with the five principles. They are key to ensuring any decisions are made correctly and ethically.
- Seek Professional Advice: Do not hesitate to seek advice from legal professionals, social services, or health professionals if you have concerns about capacity or decision-making.
- Document Everything: If you are involved in best interests decisions, keep clear records of discussions, assessments, and the reasons for decisions made.
- Advocate for Your Loved One: Ensure their voice, wishes, and feelings are heard and considered, even if they cannot express them directly.
Understanding mental capacity and decision-making is vital for ensuring that individuals are protected, empowered, and have their rights upheld. While it can be a challenging area, the legal frameworks and support services available are designed to guide families through these sensitive situations.
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Frequently Asked Questions
What is the difference between an LPA and deputyship?
A Lasting Power of Attorney (LPA) is made by an individual when they have mental capacity, allowing them to choose who will make decisions for them if they lose capacity. Deputyship is when the Court of Protection appoints someone (a deputy) to make decisions for an individual who has already lost capacity and did not make an LPA.
Does making an LPA mean I've lost capacity?
No, quite the opposite. You can only make an LPA when you have full mental capacity. It's a way of planning for the future, ensuring your wishes are respected if you were to lose capacity later on. A Property and Financial Affairs LPA can be used while you still have capacity (with your permission), but a Health and Welfare LPA only comes into effect if you lose capacity.
Can I challenge a mental capacity assessment?
Yes, if you disagree with the outcome of a mental capacity assessment, you can challenge it. Initially, you should raise your concerns with the person who conducted the assessment or their organisation. If the disagreement persists, it may be necessary to seek independent legal advice or, as a last resort, apply to the Court of Protection.
Who decides what is in a person's 'best interests' if they lack capacity?
The person making the decision on behalf of someone who lacks capacity (e.g., an attorney, deputy, or healthcare professional) must consider a checklist of factors outlined in the Mental Capacity Act 2005. This includes the person's past wishes, beliefs, values, and consulting with family and friends. The decision must be person-centred, aiming to find the outcome that the individual themselves would have chosen if they had capacity.
What if my loved one refuses care due to lack of capacity?
If a person is assessed as lacking capacity to make decisions about their care, and their refusal of care puts them at significant risk, then decisions must be made in their best interests. This can be a very difficult situation for families. It's crucial to involve social services and healthcare professionals to ensure a formal capacity assessment is done, and a best interests decision-making process is followed, potentially leading to a Deprivation of Liberty Safeguards (DoLS) authorisation if necessary. Always seek professional guidance in these situations.
Need More Help?
Support Organisations
- Age UK:0800 678 1602
- Carers UK:0808 808 7777
- Alzheimer's Society:0333 150 3456
- Parkinson's UK:0808 800 0303