Mental Capacity Act

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Mental Capacity Act  (MCA)– Five Principles

  • Individuals are presumed to have capacity.
  • All practical steps must be taken to support someone in decision-making.
  • A person is not to be treated as lacking capacity merely through making an unwise decision.
  • An action taken on behalf of a person must be in their best interests.
  • Regard must be had as to whether an act or decision is the least restrictive of a person’s rights and freedoms.

The MCA prohibits blanket decision-making on behalf of people with capacity issues and introduces a functional two stage test of capacity that is time and decision specific.

Two Stage Test:

1.) Is there impairment of, or disturbance in, the functioning of the person’s mind or brain?
If yes, move onto question 2.
2.) Is the impairment or disturbance sufficient that the person lacks capacity to make that particular decision at that particular time?

To answer this 2nd question you need to assess ability to make the decision.

Can the person:
Understand in broad terms what decision they need to make and why.
Understand the consequences of making or not making the decision.
Understand, retain and weigh up information.
Communicate the decision by any means.

The first three points should be treated together if a person is unable to do any of these three things they will be treated as unable to make the decision in question. The fourth only applies in the situation where a person cannot communicate their decision in anyway. They will be treated as unable to make the decision in question.

Make sure all processes are recorded in medical records.

It requires everyone who cares for or treats people with capacity issues to respect their individual rights and to act in their best interests when making decisions on their behalf.

Best Interests
If the patient does not have the capacity to make the decision in question, a best interests decision should be considered.
Assess whether the patient could regain capacity, could the decision wait until then?
Has the patient written an Advance Decision to Refuse Treatment (ADRT) that is valid and applicable to the circumstances and would answer the decision in question.
Has the patient appointed a registered Lasting Power of Attorney (LPA) for health and person welfare or Deputy of the Court of Protection that has been given the authorisation to make the decision in question. The most recent order takes precedence.
Note that LPA and Deputies of the Court of Protection do need to make decisions that are in the best interests of the patient in question.
Otherwise:
Encourage participation of the person
Respect person’s past and present views, wishes, feelings, beliefs and values as there may be a statement made when they had capacity. e.g.  advance statement of wishes.
Consult others, for example, anyone previously named as a person to be consulted, anyone engaged in caring, close relatives, friends or others who take an interest in the person’s welfare.
Avoid restricting the patient’s rights
Avoid discrimination
Decisions about life sustaining treatment decisions must never be motivated to bring about death.  Assumptions about a patient’s quality of life should not be made.
In specific circumstances when a person without capacity has no one other than paid staff to consult in a best interest decision and Independent Mental Capacity Advocate needs to be consulted, see IMCA.