- Mental Capacity Act
The Background to the Mental Capacity Act 2005
The Act was introduced in the wake of concerns across Europe – not just in England and Wales – that some vulnerable people were falling through the net in terms of care.
The main purpose of the Act is to enable people to take decisions for themselves, if they can. These might be simple decisions such as what to have for dinner tonight or what to wear for a walk in the park. Or they could be much more complicated decisions such as whether or not to have an operation, or whether or not to sell your house and move to the seaside.
Imagine the entire population of England and Wales, including children. Could every single one of them make such decisions for themselves? Clearly a new-born baby couldn’t make any of them. What about a 10 year old girl? Or an 18 year old youth?
What about a 35 year old man who has learning disabilities? Or a 58 year old woman who has spent much of her life in and out of psychiatric hospital due to bouts of schizophrenia? Or a 97 year old man who is very frail and confused and lives in a nursing home which cares for people with dementia?
The answer of course is far from straightforward. Some people might struggle to make even simple decisions for themselves. Some people can make some decisions but not others. Some people are perfectly capable of making a decision for themselves today, but were incapable of making that same decision this time last month, or will be incapable of making that decision this time next year.
The Mental Capacity Act attempts to give us a framework for dealing with people who find it difficult to make decisions about their own lives.
The five Principles of the Mental Capacity Act
- Presumption of capacity: “A person must be assumed to have capacity unless it is established that they lack capacity”
- Help the person to make a decision: “A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success”
- Unwise decisions: “A person is not to be treated as unable to make a decision merely because he makes an unwise decision”
- Best interests: “An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests”
- Least restrictive option: “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 freedom of action”
All five principles are equally important. When dealing with an individual who may lack capacity you must consider whether what you are doing is consistent with all of the principles. If what you are doing (or what you propose to do) clearly breaches one or more of these principles then it is likely that you are doing something wrong and potentially breaking (or are intending to break) the law.
Conversely, if you are later called upon to justify your actions, you should be protected from being prosecuted if you can demonstrate that you had a reasonable belief that what you were doing was consistent with all of these principles.
Resources for viewing or downloading (the most recent nearest the top)
- If you'd like to observe (remotely) a Court of Protection hearing then please click here for details from the excellent Open Justice CoP Project. The listings are updated each day around 4.30pm for the following day.
- 39 Essex Chambers have produced lots of guidance on applying the Mental Capacity Act during the COVID-19 pandemic, including this guide on vaccinations.
- 39 Essex Barristers' Chambers, who appear regularly in the Court of Protection, have produced a very helpful guide on assessing capacity, based mainly on comments which have been made during CoP cases. Click here to see it (updated December 2020). And there is an equally useful guide on making best interests decisions too - click here to see that.
- The 4th annual report of the National Mental Capacity Forum was published in July 2020. The purpose of the forum is to promote awareness of, and good practice in, the Act.
- Click here to read David Thornicroft's account of observing a Court of Protection hearing in June 2020.
- During the COVID lockdown of 2020-21 the National Mental Capacity Forum has run a series of webinars on different aspects of the Mental Capacity Act. You can download the slides and watch recordings here.
- All episodes and interviews of the "Mental Capacity Act Podcast" from 2019 are still available to download here.
- The National Institute for Health & Care Excellence has produced a July 2019 guide for administering covert medication.
- In October 2018 the National Institute for Health & Care Excellence (NICE) produced guidance on "Decision Making and Mental Capacity". And a few days later Alex Ruck-Keene of 39 Essex Barristers Chambers produced an interesting analysis of that guidance.
- In September 2018 the Association of Anaesthetists produced a guide entitled "Anaesthesia and peri‐operative care for Jehovah's Witnesses and patients who refuse blood", which summarises the position in England, Wales, Scotland, Northern Ireland and the Republic of Ireland.
- In July 2017 the Local Government Ombudsman produced a report into complaints it had investigated regarding the Mental Capacity Act and DoLS - click here to read it (only 22 pages!)
- The Social Care Institute for Excellence has several free video clips which explain different aspects of the Act - click here to see them
- If you want to set up a Lasting Power of Attorney, or check whether someone else has an LPA in place, click here for details
- If you want to make an Advance Decision to refuse medical treatment then click here for an on-line version from the charity "Compassion in Dying"
- Here is a suggested agenda for Best Interests Meetings. Feel free to use it or amend it as appropriate. There is no "set" format for such meetings, so you would need to make sure that this agenda does not conflict with your own company's policy.
- Here are two documents relating to children being taken into care when the parent does not have the mental capacity to agree to that course of action.
- This is a very useful summary of what different courts have said about DNACPR ("Do Not Attempt Cardio-Pulmonary Resuscitation")
- In 2014 the House of Lords published a review into how the Mental Capacity Act had been implemented since it was introduced in 2007. The report criticises almost every aspect of the implementation of the Act, and the Deprivation of Liberty Safeguards. In particular it says that the Act is often seen by health and social care professionals as being an optional "add-on", rather than being (as it should be) central to good practice. You may wish to read the complete report (143 pages) by clicking here. There is also an easy-read version here (32 pages).
Scotland and Northern Ireland
The Mental Capacity Act 2005 applies in England and Wales only.
- The equivalent piece of legislation in Scotland is the Adults with Incapacity (Scotland) Act 2000. It is similar to, but certainly not identical to, the Mental Capacity Act 2005.
- Northern Ireland is in something of a limbo state at present. The Mental Capacity Act (Northern Ireland) received the Royal Assent in May 2016. Its purpose is to combine the Mental Health Act and the Mental Capacity Act into one single piece of legislation, which is a bit of a ground-breaking idea. However, the absence of a fully functioning Assembly in Northern Ireland until early 2020 has meant that the implementation date of this new Act is currently unclear. Until the new legislation takes effect, the Mental Health (Northern Ireland) Order 1986 remains the relevant piece of legislation in relation to mental health issues. There is no specific legislation covering mental capacity issues in place at present.