Seven-minute briefings

Introduction

The Mental Capacity Act 2005 exists to empower and support people to make decisions for themselves and provides a legal framework for families or professionals to make decisions in ‘best interests’ for those who are assessed as lacking mental capacity. All professionals have a duty to comply with the Mental Capacity Act 2005 Code of Practice. It also provides support and guidance for less formal carers.

The five principles

• Assume capacity.
• Take all practicable steps to support the person to make the decision for themselves.
• A person is allowed to make an unwise decision.
• If the person is assessed as lacking mental capacity, a decision needs to be made in their ‘best interests’.
• Consider the option that is the least restrictive of the person’s rights and freedom.

Assessing capacity

• Diagnostic test – does the person have an impairment or disturbance in the functioning of the mind and/or brain that is affecting their ability to make the relevant decision?
• Functional test – the person needs to be able to do all the following to be considered to have the relevant mental capacity:
  • Understand the information relevant to the decision.
  • Be able to retain the information long enough to make the decision.
  • Use and weigh the information.
  • Communicate their decision – by any means (verbally, via communication aids, muscle movements)

Acting in best interests

When a person has been assessed as lacking mental capacity to decide, a best interest decision needs to be made on their behalf this could be by someone with Lasting Power of Attorney (LPA).

If there is no LPA, it should be made by the most appropriate person e.g. social worker, GP, solicitor, domiciliary care worker, etc. NB – a person who is ‘next of kin’ does not have any legal powers for decision making.

The Code of Practice has a helpful checklist that tells you what you need to consider if you are making a best interest’s decision on behalf of someone. There is also useful guidance on the Councils ACHPH intranet page.

Key points

• Don’t make assumptions about a person based on their age, appearance, diagnosis or behaviour.
• Capacity is time and decision specific.
• Where possible consider making the decision the person would have made for themselves.
• If a person is ‘unrepresented’ by friends or family, you must consider the use of an advocate. For some decisions, the Act makes it a statutory duty to use an Independent Mental Capacity Advocate (IMCA).

Deprivation of liberty

Where a person lacks capacity to decide where they are accommodated to receive the necessary care and/ or treatment, is subject to continuous supervision and control and is not free to leave to live where they choose then they are deprived of their liberty. These arrangements need to be lawful.

If the person is being cared for in a care home or hospital, an authorisation under the Deprivation of Liberty Safeguards is required. For arrangements in any other setting, an application needs to be made to the Court of Protection.

Coronavirus Act 2020 and COVID-19

The Coronavirus Act does not provide for any modifications to be made to the Mental Capacity Act 2005, including the Deprivation of Liberty Safeguards (DoLS). This means that these provisions will continue to apply. Where it is not possible to engage with someone who requires support in person, then think about using digital platforms such as Skype etc. to facilitate communications. This guidance has further information. It is likely that further guidance will be issued, including use of video conferencing platforms, as the situation develops.with other professionals and make referrals as appropriate.