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5 minute read
The Act’s roots lie in the case of a woman with a learning disability. Doctors felt it was in her best interest to sterilise her. However, they believed she lacked the mental capacity to consent to the treatment.
The House of Lords ruled that, if doctors believed she lacked the capacity to make decisions about the sterilisation operation, and that it was in her best interests, then nobody could sue them for carrying out the operation without her consent (F v West Berkshire HA, 1991).
First of all, it is assumed a person has capacity unless injured, ill, or impaired of the mind or brain.
A lack of capacity should not automatically be assumed simply based on a person’s age, appearance, condition, or behaviour.
All practical steps should be taken to help a person make the decision themselves, before treating them as unable to do so.
A person is not to be treated as unable to decide, merely because they make an unwise decision. Therefore, the focus of assessing a person’s capacity needs to be based on how a person makes the decision, rather than the decision itself.
If a decision is made (or an act undertaken) on behalf of a person who does not have mental capacity, then it must be made (undertaken) in their best interest.
Finally, if a decision is made (or an act undertaken) on behalf of a person who does not have mental capacity, it should be the option least restrictive to the person’s rights and freedoms.
Capacity is the ability to use and understand information in order to make a decision. The level of capacity depends on the seriousness of the decision – the more critical it is, the greater the mental capacity required.
Capacity is also time- and decision-specific, depending on the decision’s nature and when it needs to be made. A person may lack the capacity to make a decision one day, but be able to make it at a later date (time-specific), or they may have the capacity to decide what to eat or wear, but not the consequences of refusing medication (decision-specific).
A blanket ‘impaired capacity’ label can no longer be applied, because people often have ‘fluctuating capacity’, meaning there are times information is understood, and other times when it is not.
If the answer to any of the above questions is ‘no’, the person is considered to be lacking the capacity to make that decision at that specific time, in which case a decision can be made on their behalf. Any decision made on behalf of an individual who lacks capacity must be in the person’s best interests.
This very much depends on the decision that needs to be made. Any decision that has significant consequences – for example, a change in accommodation, legal, financial, or significant medical treatment – the capacity assessment should involve professionals. With other, less critical decisions – such as what to wear or eat – the capacity assessment could be made by a family member or care worker. Health professionals must document steps taken in order to assess capacity.
As previously discussed, one of the key principles of the MCA is a ‘best interest decision’. This states that any decision made on behalf of someone who lacks capacity must be made in their best interests. A best interest decision is one the person would have made if they were able and, if there is nothing in writing (see future planning), the decision should only be taken after consulting with family and friends who – it is assumed – will have some idea of the feelings and beliefs of the person who lacks capacity.
The principles of the Mental Capacity Act (MCA) lie behind some of the most important documents involved with end-of-life planning, and given the unpredictable nature of life, making your wishes known in advance makes a great deal of sense.
Below is a short list of documents that can be prepared now, and can be held and only used if/when you lack the capacity to make these decisions yourself. There is a great deal of information online about each of these.
As with any medical diagnosis, an impairment to the brain may come on unexpectedly; it is critical to be prepared. Complete any legal paperwork today, and don’t wait until tomorrow. The longer the wait, the higher the possibility of mental capacity being questioned. In many cases, this is not a problem. However, it is well worth taking precautions, and having a solicitor or doctor confirm the capacity of the person signing the document.
This Act may have consequences for all of us at some point in our lives, whether it is ourselves, or someone close to us, who are affected – it is well worth familiarising yourself with it.
https://www.scie.org.uk/mca/introduction/mental-capacity-act-2005-at-a-glance
