Mental Capacity Act

This section provides guidance on mental capacity. Sections include:
overview; principles; consent; best interests; Court of protection; advocacy; deprivation of liberty safeguards

The Mental Capacity Act (2005) provides the legal framework for making decisions where a person may not have the mental capacity to make the decision for themselves.  It states there should be a presumption that an adult has the mental capacity to make an informed choice about their own safety and about how they live their life. It applies to people aged 16 and above. A person is said to lack capacity if at that point in time they are unable to make a decision for themselves because of an impairment of or disturbance in the functioning of the mind or brain.  In order to make a decision for themselves, the person must be able to:

  • understand the information relevant to the decision that needs to be made;
  • retain that information long enough for them to make the decision;
  • use or weigh up the information as part of the process of making the decision; and 
  • communicate their decision (whether by talking, using sign language or by any other means such as blinking an eye or squeezing a hand),

Mental capacity is time and decision specific. This means that a person may be able to make some decisions but not others at a particular point in time. Remember, a person's mental capacity to made decisions can also fluctuate.

It is vital that if there are concerns regarding a person's mental capacity that the appropriate assessment is completed in accordance with the Mental Capacity Act (2005). Other tests such as the Mini Mental State Examination (MMSE) have a contribution in assessment processes, but it is not helpful in this situation as mental capacity is time and decision specific.

Mental capacity and the ability to give informed consent are pivotal to decisions and actions where Safeguarding Adults is being addressed. All Safeguarding interventions must take into account the ability of adults to make informed choices about the way they want to live and to the risks that they want to take. This will include their ability to:

• Understand the implications of the situation that they are in.
• Take action themselves to prevent abuse.
• Participate as much as possible in decision making about interventions.

The Mental Capacity Act is designed to empower and to protect people who lack the mental capacity to make decisions for themselves. All decisions taken in the Safeguarding Adults process must comply with the Act.

  • The adult must be assumed to have the capacity to make decisions about their own safety unless it is proved otherwise on a balance of probabilities.
  • The adult must receive all appropriate help and support to make their own decisions before anyone concludes that they cannot make their own decisions.
  • An adult deemed to be at risk has the right to make decisions that other people might regard as being unwise or eccentric. A person cannot be treated as lacking capacity due to these reasons.
  • Decisions being made on behalf of a person where it is established that they lack mental capacity must be done in their best interests and should be the least restrictive of their basic rights and freedoms.
  • Someone making a decision or acting on behalf of someone else who lacks capacity must consider and decide to act in a way that would interfere least, with the person's rights and freedoms of action.

It is vital during the Adults Safeguarding process to consider whether the adult at risk is capable of giving autonomous, informed consent. If they are able, their consent should be sought. This may be in relation to, but not limited to, whether they give consent for the following:

• An activity that may be abusive - if consent to abuse or neglect was given under duress (e.g. as a result of coercion and controlling behaviour, exploitation, pressure, fear or intimidation) this consent should be disregarded.
• A Safeguarding Adults enquiry goes ahead in response to a concern that has been raised. Where an adult at risk with mental capacity has made a decision that they do not want any action to be taken and there are no public interest considerations, their wishes must be respected. The person must be given information and have the opportunity consider all of the risks and to fully understand the likely consequences of that decision over both the short and long term.

• The recommendations of an individual protection plan being put into place.
• A medical examination.
• An interview
• Certain decisions and actions that are taken during the Adult Safeguarding process with the person or with people who know about the abuse and its impact upon the adult at risk.

If, after discussion with the adult deemed to be at risk, who has mental capacity, they refuse any interventions, their wishes will be respected unless:

• there is an aspect of public interest e.g. not acting would put other adults or children at risk or
• there is a duty of care on a particular agency to intervene e.g. the police if a crime has been or may have been committed.

Where an adult at risk who has been subjected to abuse is unable to consent to the adult safeguarding process, it will be necessary to make a decision on their behalf based on their best interests.  Additional guidance can be found in the Mental Capacity Act Code of Practice. Chapter 5 What does the Act mean when it talks about 'best interests' gives a comprehensive overview and a checklist to assist the decision maker when they are trying to work out what is in a person's best interests.

The Court of Protection addresses decisions and orders that affect people who have been found as lacking mental capacity to make the decision themselves in certain circumstances. The court can make major decisions regarding a person's health and welfare, as well as their property and affairs. They are the court of last resort where other remedies have failed. The court has the power to:

• decide whether a person has capacity to make a particular decision for themselves
• make declarations, decisions or orders on financial and welfare matters affecting people who lack capacity to make such decisions
• appoint deputies to make decisions on behalf of the person lacking capacity
• decide whether a lasting power or attorney or an enduring power of attorney is valid and applicable
• remove deputies who fail to carry out their duties and responsibilities listed within Mental Capacity Act (2005).

Most decisions about personal welfare will be made legally without a requirement to apply to the court as long as the decision is made in accordance with the Mental Capacity Act (2005). It should be evidenced that the best interest checklist has been used and any disagreements resolved informally where possible.

It is sometimes necessary to make an application to the court in safeguarding situations, for example:
• where a particularly difficult decision must be made
• it has not been possible to resolve disagreements by any other means
• ongoing decisions must be made about the personal welfare of a person who lacks capacity to make such decisions themselves
• matters relating to property or finance require resolution e.g. ending tenancy
• serious medical treatment decisions are required such as the withdrawal of artificial nutrition or hydration
• concerns or a need to place restrictions on contact with named individuals because of risk (or potential risk) Or where proposed Safeguarding Adults actions may amount to a deprivation of liberty outside of a care home or hospital
• a person is in a care home or hospital that may amount to a deprivation of liberty but the family/friends are objecting to that situation (see London Borough of Hillingdon v Steven Neary [2011] EWHC 1377).

As part of the Adult Safeguarding process there should be consideration given to whether the adult at risk may benefit from the support of an independent advocate. There are several different types of advocacy but two distinct types of advocacy are instructed and non-instructed. It is important that people involved in Adult Safeguarding are aware of which type of advocate is supporting the person to express their views.

An Instructed Advocate takes their instructions directly from the person they are supporting. They would only attend meetings or express the views of the person with the permission of that person. They will represent the person's view as if it were their own. The advocate's own opinion should not be expressed.

A Non-Instructed Advocate will work with people who are unable to give a clear indication of their views or wishes in a certain situation. For example, this may be someone with dementia, learning difficulties or acquired brain injury. The advocate will uphold the person's rights; ensure fair and equal treatment or access to services.

The Mental Capacity Act (2005) put advocacy on a statutory footing with the establishment of the Independent Mental Capacity Advocate (IMCA). IMCAs will act as a safeguard for people who do not have mental capacity to make their own decisions in specific situations and who do not have family or friends who can represent them do so. The statutory referrals cover serious medical treatment and change of residence.

Where a person is found to lack capacity for consenting to at least one protective measure which is either being considered or has been put into place the responsible bodies (Local Authority and/or NHS Body) have the powers to instruct an IMCA. In Adult Safeguarding cases (and no other cases) access to IMCAs is not restricted to people who have no-one else to support or represent them.

Since its introduction in 2002, the Advocacy Charter has been widely accepted by advocacy organisations across England and Wales as defining the principles and promotion of advocacy.

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