Mental Capacity Act Essentials
About this course
Wow – a whole course about legislation! Not quite! Really it is about people, their rights and making sure that if they are unable to make choices for themselves that they are appropriately protected and supported.
This could be someone you support or a family member. It is not just about old or disabled people. Anyone can lose capacity for a short period of time and knowing their rights in these situations is essential.
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The Mental Capacity Act (MCA) has been a legal requirement since 2007 in England and Wales.
The main purpose of the MCA is to promote and safeguard decision-making. It provides a statutory framework for people who lack capacity to make decisions for themselves. It sets out who can take decisions, in which situations, and how they should go about this.
Each care provider service needs to consider the people in their care whenever important decisions need to be made about their treatment and care.
If there is any doubt about whether an individual is able to make an informed decision, there needs to be an assessment under the MCA. The decision does not need to be something you would personally think of as sensible.
Under the MCA, the starting point must always be to assume that a person does have the mental capacity to make a specific decision, unless it can be established they lack capacity.
Some people may need help to be able to make or communicate their wishes, but this does not necessarily mean that they lack capacity to make a decision. What matters is their ability to carry out the processes involved in making the decision.
It is really important that care workers and their managers know these.
Working through the principles, 1 to 3 will support the process before or at the point of determining whether someone lacks capacity. If it is decided that capacity is lacking, principles 4 and 5 will support the decision-making process.
The 5 key principles are set out below together with short video clips from the Social Care Institute of Excellence (SCIE) with people talking about each principle:
You may need to assess capacity where a person is unable to make a particular decision at a particular time.
Lack of capacity may not be a permanent condition. Assessments of capacity should be time and decision specific.
Does the person have an impairment of, or a disturbance in the functioning of, their mind or brain?
Stage 1 requires proof. Examples of an impairment or disturbance in the functioning of the mind or brain may include the following:
Conditions associated with some forms of mental illness
Dementia
Significant learning disabilities
The long-term effects of brain damage
Physical or medical conditions that cause confusion, drowsiness or loss of consciousness
Delirium
Concussion following a head injury,
The symptoms of alcohol or drug use.
Before deciding that someone lacks capacity to make a particular decision, it is important to take all practical and appropriate steps to enable them to make that decision themselves
These steps (such as helping individuals to communicate) must be taken in a way which reflects the person’s individual circumstances and meets their particular needs.
Your organisation may have specific policies and procedures with a checklist document that you have to follow and complete. It will incorporate the above checklist. Ask your colleagues or manager what the agreed ways of working are in your organisation for making and documenting best interests decisions.
The Public Guardian is supported by the Office of the Public Guardian (OPG).
This is a government body established by the Act to oversee attorneys and deputies and to act as a single point of contact for referring allegations of abuse in relation to attorneys and deputies to other relevant agencies.
The Enduring Power of Attorney (EPA) was abolished in 2007 when the Mental Capacity Act came in but any arrangements made before then are still valid unless they have been replaced by a Lasting Power of Attorney. Now, an EPA deals only with property and financial affairs, not with personal welfare issues.
An advance decision is sometimes known as an Advance Decision to Refuse Treatment, ADRT or a Living Will.
It is a decision that an individual can make about specific types of treatment they wish to have or refuse at some time in the future.
Independent Mental Capacity Advocates (IMCAs) are a safeguard for people who lack capacity to make some important decisions.
An IMCA’s role is to support and represent a person in the decision-making process. They make sure the MCA is being followed. In IMCA must be instructed for people in these circumstances:
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