What is Mental Capacity
The Mental Capacity Act helps people aged 16 years and over who lack mental capacity, and those who take decisions on their behalf.
- Aspects of common law relating to capacity and consent
- Who can take decisions
- How they should go about this
It affects anyone who has contact with people who lack capacity, for example, due to a learning disability, stroke, illness, mental disorder, effects of drugs or alcohol or brain injury, and also enables people to plan for a time when they may lose capacity.
It is important to remember that these conditions do not in themselves mean that a person lacks the capacity to make a particular decision.
Statutory principles of Mental Capacity Act 2005 (MCA)
The MCA is underpinned by five statutory principles:
A presumption of capacity
Every adult has the right to make their own decisions and must be assumed to have capacity to do so, unless it is established that they lack capacity.
Individuals being supported to make their own decisions
A person is not to be treated as unable to make a decision unless all practicable steps to help him or her to do so have been taken without success.
A person is not to be treated as unable to make a decision merely because he or she makes an unwise decision.
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 their best interests.
Least restrictive option
Anything done for or on behalf of a person who lacks capacity should be the least restrictive of their rights and freedom of action.
Before you begin to assess capacity
The act sets out a clear test for deciding whether a person lacks capacity to make a particular decision. A lack of capacity cannot be established through a person’s age, appearance, condition or aspect of their behaviour.
It is also important to remember that it is decision specific. We cannot assume that because a person lacks capacity in respect of a specific decision that this means they lack capacity to make other decisions.
Anyone assessing someone’s capacity to make a decision for themselves should use the two stage test of capacity.
- Does the person have an impairment of the mind or brain? Is there some sort of disturbance affecting the way their mind or brain works? (It doesn’t matter whether the impairment or disturbance is temporary or permanent.)
- If so, does that impairment or disturbance mean that the person is unable to make the decision in question at the time it needs to be made?
Assessing ability to make a decision
Does the person have a general understanding of what decision they need to make and why they need to make it?
Does the person have a general understanding of the likely consequences of making, or not making this decision?
Is the person able to understand, retain, use and weigh up the information relevant to this decision?
Can the person communicate their decision (by talking, using sign language or any other means)? Would the services of a professional (such as a speech and language therapist) be helpful?
Assessing mental capacity is complex for more information please refer to the
Deprivation of Liberty Safeguards (DoLS)
The Deprivation of Liberty Safeguards (DoLS) were introduced in April 2009, they are part of the Mental Capacity Act 2005.
They provide legal protection for vulnerable people who lack the capacity to make decisions in respect of care and treatment they may need. For example they may not be allowed to leave the hospital or care home setting or they may require 24 hour continuous supervision.
The DoLS ensure that deprivation of liberty only happens under very specific conditions and only when it is in someone’s best interests.
The standards aim to make sure people are looked after in a way that does not inappropriately restrict their freedom and applies to people who:
- are aged 18 or over
- have a mental disorder such as dementia or a learning disability
- lack the capacity to consent to where their treatment or care is given
- need to have their liberty taken away in their own best interests to protect them from harm
The standards ensure that no one is deprived of their liberty without good reason, and that a person still has specific rights.
Relevant Persons Representative (RPR)
Every person deprived of their liberty under the terms of the MCA Deprivation of Liberty Standards (DoLS) must have a Relevant Persons Representative (RPR). This representative protects their interests throughout the process.
The role of the RPR is to:
- maintain contact with the person being deprived of their liberty
- represent and support that person in all matters relating to the DoLS. This would include (if appropriate) requesting a review, using an organisation’s complaints procedure on the person’s behalf or making an application to the Court of Protection
- provide support that is independent of the relevant person’s commissioners and service providers
The DoLS means that care homes or hospitals must obtain authorisation for someone to be deprived of their liberty.
If someone is at risk of being deprived of their liberty, or is already being deprived of their liberty, the registered care home manager or hospital must apply for authorisation of the deprivation of liberty to the relevant supervisory body.
For further advice and assistance please refer to the City of York Council website for information related to adults, support with disabilities & health conditions, support with your mental health and deprivations of liberty safeguards.