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Mental Capacity update
25 October 2007
With the Mental Capacity Act (MCA) 2005 now in
force, now is a good time to examine the main features of the Act
and the associated Code of Practice.
The scope of the Act
This legislation is relevant whenever there is
an issue about the ability of anyone aged 16 or over to make a
decision. It is worth bearing in mind that:
- In this context, "decision" embraces everything from deciding
whether or not to go shopping, to deciding on such matters as
making a Will or undergoing medical treatment
- The Act will need to be taken into account by those who provide
services in care homes, hospices, private hospitals and NHS
establishments
- A person is assumed to have capacity, unless and until the
contrary is established
Keystones of the arch
The fundamental principles are set out in
Sections 1 – 4 of the Act. These principles include the
following:
- A person is assumed to have capacity in the first instance
- "All practicable steps" must be taken to help a person to make
a decision
- An unwise decision does not equate to lack of capacity
- The "least restrictive" way should be found to achieve the
purpose for which a decision is required
The way in which these principles can be
applied in practice is explained in the MCA Code of Practice, which
contains illustrations of situations in which those responsible for
the welfare of others will be expected to act.
For example, the Code of Practice discusses in
Chapter 2 Sections 2.6 – 2.8, the question of assisting a person to
make a decision with the help of a sign-language interpreter,
providing information in a form accessible to the person concerned
or, over a longer term, helping a person to acquire new skills
which will enable him or her to make decisions for themselves.
Is a formal assessment of capacity
necessary?
If by "formal assessment" we mean the
obtaining of an opinion from a medically qualified person, the
answer is – by no means always. The Act imposes what may be
called a functional test i.e. it poses the question whether an
individual has the capacity to make "a particular decision at the
time when it needs to be made" (Code of Practice, Chapter
4).
It follows that the question of whether a
person has capacity depends on:
- The nature of the decision to be taken
- Whether that decision needs to be made now, or can be deferred
until later on
It also follows that whether or not a formal
assessment of capacity is required depends in large measure on the
nature of the decision which a person is being asked to make.
It would be absurd to expect a private individual to go to the
lengths of asking a doctor or nurse every morning to determine
whether his/her elderly aunt could decide to have cereal or
porridge for breakfast.
On the other hand the more complex a decision,
and the more serious the consequences of that decision for the
person concerned, the more carefully we need to proceed. Paid
carers and healthcare staff are much more likely to need to be able
to show that they have taken into account the Code of
Practice.
How is capacity assessed?
This is usefully summarised in Chapter 4 of
the Code of Practice, which demonstrates the functional nature of
the test. In particular, a person might lack capacity to make
a decision about one issue (e.g. whether or not to make a Will) but
not about another (e.g. whether to have cereal or porridge for
breakfast).
There may need to be particular care in the
case of younger adults. The Family Law Reform Act 1969
presumes legal capacity in relation to medical treatment, on the
part of any person over the age of 16. The MCA provides that
a person lacks capacity if he cannot make a decision because of an
impairment or disturbance in the functioning of his mind or
brain. As already explained, a person is nevertheless not to
be treated as unable to decide merely because he makes an unwise
decision.
What then if we are dealing with an articulate
27 year old who decides not to eat? This person may be
putting his or her life at risk, but the same might equally be said
of mountaineers and potholers. In the case of the 27 year old
there will need to be a formal assessment to allow time for
consideration to be given to the need for an application to be made
to the Court of Protection. An assessment in these
circumstances must apply the tests set out in Section 3 of the MCA,
i.e.
- Can the person understand the information
relevant to the decision
- Can he or she retain that information
- Can he or she use or weigh that information,
as part of the decision making progress
The Court of Protection
The MCA expands the role of this Court, which
will now decide on matters affecting healthcare and welfare issues,
as well as property and financial affairs.
The Court of Protection will, therefore, have
the jurisdiction to make a declaration or decision concerning (for
example) the nutrition of a 27 year old who refuses to eat, if it
is satisfied that this refusal can be attributed to lack of mental
capacity.
Rules concerning applications to, and
procedures in, the new Court were laid in Parliament in July of
this year. These rules came into force on 1 October 2007, and
number just over 200 in all. Their overriding objective is to
"enable the Court to deal with a case justly", which includes
"ensuring that the parties are on an equal footing" (Rule
3).
Court permission is required to make an
application to the Court in all but certain specified cases (Rule
50). In many cases, an assessment of capacity must be filed
with the "permission form". Any person with sufficient
interest may apply to the Court to be joined in as a party (Rule
73). In general, Court of Protection hearings will be in
private. Provision is made for expert evidence to be heard in
appropriate circumstances (Rule 123).
Lasting Powers of Attorney
From the point of view of healthcare staff and
all those who have paid responsibilities to look after the health
and welfare of persons who lack capacity, the most significant
innovation in the Act is the creation of Lasting Powers of Attorney
which enable the donee of a power to make decisions regarding a
person’s welfare. It will be recalled that the existing
Enduring Powers of Attorney can only deal with financial
affairs.
As a result, the donee of a Lasting Power of
Attorney may be duly authorised to make decisions about consenting
to medical treatment on behalf of a person who no longer has the
capacity to do this for himself.
Training materials
The Department of Health has issued five sets
of training materials for use by those employed in the relevant
areas of Primary Care Trusts, Acute Hospitals, residential care
homes and in the community care sector. These publications
can be accessed on the Department of Health website.
Future developments
Perhaps somewhat surprisingly, the 2005 Act is
already going to be subject to amendment as a result of the passing
of the Mental Health Act 2007. The principal amendment
concerns the codification of what has come to be known as the
Bournewood Guidelines.
Conclusion
The Mental Capacity Act does much to confirm
the law relating to those who lack mental capacity, as it had
already been developed at common law. Perhaps the most
significant changes relate to the new Court of Protection and also
to the introduction of Lasting Powers of Attorney. It would
be particularly important to ensure that in those cases where
persons who lack capacity are being dealt with in the institutional
setting, professionally employed staff are able to demonstrate that
they have paid due regard to the Act and to the Code of
Practice.
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