1. Mental Capacity Act and Its Impact
Anu Varshney
South East DriveAbility

2. MCA-2005

3. MCA 2005 Developed to bring together and integrate existing law
Puts the needs and wishes of a person who lacks capacity at the centre of any decision-making process

4. Mental Capacity Mental Capacity Act 2005
Replaces section 7 of the 1983 Mental Health Act and the 1985 Enduring Power of Attorney Act
Enshrines in Law current best practice and common law principles concerning people who lack capacity and those who make decisions on their behalf

5. Mental Capacity Act 2005 Applies to England and Wales
Consolidates and builds on existing common law
Significantly amended by the Mental Heath Act 2007
Comes with a Code of Practice (actually two now!) and a lot of training material

6. Which staff will be affected by the MCA?
People working in a professional capacity, e.g. doctors, nurses, dentists and social workers
People who are paid to care or support, e.g. home care workers and care assistants
Anyone who is a deputy appointed by the Court of Protection
Anyone acting as an independent mental capacity advocate (IMCA)
Anyone carrying out research involving people who may lack capacity

7. Who will be affected Many people with the following: – dementia
– learning disability (especially severe learning disability)
– brain injury
– severe mental illness
– anyone planning for the future
– temporary loss of capacity, for example because somebody is unconscious because of an accident or anaesthesia or because of alcohol or drugs

8. Mental Capacity Act 2005 Principle 1 Presumption of Capacity
The presumption of capacity
every adult has the right to make his/her own decision and must be assumed to have capacity to do so unless it is proven otherwise
Fundamental principle in common law
Balancing self-determination with protection
A person has capacity unless it is proven
otherwise
The need for help or support does not mean the
person lacks capacity

9. Principle 2 Rights for Individuals Maximising Capacity
The right for individuals to be supported
to make their own decisions
people must be given all appropriate help before
anyone concludes that they cannot make their own
decisions
Everything possible or practicable must be done to assist with a decision
eg pictures, photos, videos, tapes, sign language
Could involve blinking or squeezing a hand
Involve others who can communicate or put service user at ease
Does the decision need to be made now?
If the person might regain capacity
Fluctuating capacity
Be careful of undue influence and persuasion

10. Principle 3 Rights to make decisions Eccentric or Unwise Decisions
Individuals must retain the right to make
what might be seen as eccentric or
unwise decisions
The right to autonomy
Own values, beliefs, preferences and attitude to risk
Repeated acts that place a person at a high degree of risk may indicate a capacity issue
Defying all notions of rationality
Markedly “out of character”
Suggestible, susceptible to undue influence

11. Principle 4 Best interests Best Interests
Anything done for or on behalf of people
without capacity must be in their best interests
Well established common-law principle
Whose best interests?
Can we compromise?
Needs an objective methodology
Cannot simply try to “put ourselves in the person’s shoes”
Need to use Person Centred Approaches
Listen to others but the decision maker makes the
decision

12. Best interests (Mental Capacity Act, Section 4; Code of Practice, 5
Any decision or act must be in a person’s best interests
When making decisions, staff should take account of the following:
– equal consideration and non-discrimination
– considering all relevant circumstances
– regaining capacity
– permitting and encouraging participation
– special considerations for life-sustaining treatment
– the person’s wishes, feelings, beliefs and values
– the views of other people

13. Principle 5 Least restrictive alternative
Anything done for or on behalf of people without capacity should be the least restrictive of their basic rights and freedoms
Can we intervene in a way that will interfere less with the person’s rights and freedoms
Be careful of institutional practice
Explore alternatives
An option which is not the least restrictive may be chosen if it is in the person’s best interest

14. Capacity Assessment
Must be able to understand information presented to them
Must be able to retain long enough to make a judgement
Must be able to express judgement free from influence
“Decision specific”
Capacity may vary over time

15. How is capacity assessed?
Factors to be considered include:
general intellectual ability
memory
attention and concentration
reasoning
verbal comprehension and expression
cultural influences
social context

16. How to assess capacity (Code of Practice, 4.11–4.13)
The two-stage test of capacity:
– Is there an impairment of, or disturbance in, the functioning of the person’s mind or brain?
– If so, is the impairment or disturbance sufficient to cause the person to be unable to make that particular decision at the relevant time?
Staff should always keep records of any assessment

17. What kind of help could someone need to make a decision?
Provide all relevant information
Don’t give more detail than required
Include information on the consequences of making, or not making, the decision
Provide information on options
Consult with family and care staff on the best way to communicate
Be aware of any cultural, ethnic or religious factors that may have a bearing
Make the person feel at ease
Try to choose the best time of day for the person
Try to ensure that the effects of any medication or treatment are considered
Take it easy – one decision at a time
Don’t rush
Be prepared to try more than once

18. What kind of records will staff need? (Code of Practice, 4.60–4.62)
Day-to-day – record and review, but elaborate records not required on every occasion about decisions/acts of care
Professional records – record assessments of capacity
Formal reports as required

19. Full Impact of this Act
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20. Useful addresses/resources