I’ve been challenged to give you, in five ‘Top Tips’, the headlines of what health and care staff need to know and put into practice to be compliant with the Mental Capacity Act 2005 (MCA). See what you think, and feel free to tell me where I’ve missed something you really want to know. (There’s a small cheat, in that the five ‘top tips’ on restraint and deprivation of liberty will follow shortly!)
1. The Five Principles of the MCA are ‘Statutory’
This means, they are the law. If someone might lack capacity to make a decision when it needs to be made – see Tip 2 – the principles give you the framework that you must use when deciding if they lack capacity, or taking any action when someone cannot give consent due to that lack of capacity. All staff from day one need to know about these principles, and be helped to understand what they mean in practice.
They are intuitive and sensible. But you may be surprised to see that the first three tell you to start by assuming people can make their own decisions; and talk about ways of encouraging people to make their own decisions; and remind us that we can’t decide someone lacks capacity for a decision just because their decision may, to others, seem unwise. Only the last two are about how to make decisions in the person’s best interests, and these two stress how important it is to find the ‘least restrictive option’ to meet a specific need.
For the principles and more about how to use them, see the code of practice chapter 2.
For a great film on the principles see here.
2. Capacity is ‘Decision Specific and Time Specific’
This means, don’t assess people’s capacity based on a diagnosis, such as Dementia or Learning disability, or their age (as in, ‘Molly is 103, she must lack capacity’). You must focus on whether this individual can make this specific decision at the time it needs to be made. If you think about this, you’ll realise that, if someone’s not facing a decision that needs to be made at this time, you just treat them as a person who can choose how they want to live day to day, without particularly worrying about their capacity.
Example: Jean and Ted enjoy each other’s company in their care home. They both are living with significant dementia and both have word-finding difficulties; they seem to chatter away together although nobody else can understand a word. Frequently they set each other off in a fit of the giggles: staff enjoy seeing them happy, but some worry in case this friendship is ‘unwise.’ But since neither of them is facing a decision where their friendship might be a factor, there is no reason to assess their capacity.
3. More and more people are using the MCA to plan ahead for themselves ahead of possibly losing capacity
The MCA code of practice has excellent chapters about the ways we can all, with capacity, use the MCA to plan ahead for a time when we might lack capacity to make some big decisions for ourselves. For more on advance decisions to refuse treatment (ADRTs), which many people use to refuse what they fear might be unnecessary treatment when they are approaching the end of their life, see the code of practice chapter 9.
For information about how anyone can give decision-making powers even for health and welfare decisions to a person they trust, see the code chapter 7, and also the excellent summaries on the website of the Office of the Public Guardian here.
It’s important to know that these are real powers; health or care staff cannot merrily make decisions ignoring either an ADRT that is properly made and relevant to the decision, or an LPA for health and welfare, who has the powers to consent to, or refuse, what is being offered on behalf of the person who lacks capacity.
4. The MCA explains how you should assess capacity
Different people need to know how to assess capacity: it might be the care worker who must decide if Mina has capacity to choose what to eat, or how to spend her day. It might be a registered nurse who decides if she has capacity to consent to a flu jab, or the hospital surgeon who must decide if she has capacity to consent to surgery on her bunion.
Assessing capacity can be complicated but often isn’t. You’re trying to work out, from a conversation with the person or by observing them, whether they can make a particular decision, and then whether, if they can’t, that inability is due to some ‘impairment of, or disturbance in the functioning of, their mind or brain.’
Note how wide this definition is! For more on how to assess capacity see the MCA code of practice chapter 4.
For guidance on more complicated assessments, see here.
5. If a decision has to be made for someone lacking capacity, it must be made in that person’s best interests.
There is no single definition of best interests – if you think for a moment, there can’t be, since we’re all so varied in our beliefs and values, and what we like or even fear. The MCA code of practice chapter 5 has information on how to work out what is in the person’s best interests.
For making more complex decisions, see here
Anyone making a decision for someone lacking capacity must be able to evidence that lack of capacity (see Tip 4). Then they must act in the person’s best interests. There’s a really useful checklist of factors that must be considered from the point of view of that individual, except where there is no time, in an emergency. These factors centre around learning what the person wants now, even though they lack capacity, and also what they may have said or written about the decision now facing them, while they had capacity. This checklist is ‘statutory’ like the principles: it’s not an optional extra.
It makes it clear that you must consult – and listen to – the person’s relatives and friends; they are the ones who know what the person wants, and what their past wishes and feelings were, in the context of their unique history or cultural background.
But also remember that the phrase ‘next of kin’ is dangerously misleading: it does not give someone any powers to make decisions on behalf of their relative. The MCA lays out which people can make decisions for or about someone lacking capacity, generally through an LPA or because they have powers as a deputy. See tip 3 for more about how this works, and useful links.