Mental Capacity Act 2005

In 2007 the Mental Capacity Act 2005 came into force in England and Wales. It provides a legal framework for decision-making on behalf of people aged 16 or over who cannot make decisions themselves. It also sets out the law for people who wish to make preparations for a time in the future when they may lack capacity to make decisions.

• A principled approach
  • the Act sets out five principles that are designed to regulate decisions made under the legislation:
    • A person must be assumed to have capacity unless it is established that he or she lacks capacity;
    • A person is not to be treated as unable to make a decision unless all practicable steps have been taken to help him or her;
    • A person is not to be treated as unable to make a decision just because he or she makes an unwise decision;
    • All decisions must be made in the incapacitated person's best interests;
    • Decisions made must be least restrictive of the individual's fundamental rights or freedoms
  • where a decision seriously conflicts with one of these principles, it is unlikely to be lawful

What is capacity and when is it lost?

• under the Act, a person lacks capacity if, at the time the decision needs to be made, he or she is unable to make a decision because of an 'impairment of, or a disturbance in the functioning of the mind or brain'
  • an assessment of capacity must be made in relation to the particular decision that needs to be made at the time the decision is required.

Assessment of incapacity:

• a person lacks capacity if, at the time the decision needs to be made, he or she is unable to:
  • Understand the information relevant to the decision;
  • Retain the information;
  • Use or weigh the information;
  • Communicate the decision (by any means)
  • where an individual fails one or more parts of this test, then they do not have the relevant capacity and the entire test is failed
  • in assessing capacity, consideration should be given, where appropriate, to the views of those close to the individual. Family members and close friends may be able to provide valuable background information, although their views about what they might want for the individual must not be allowed to influence the assessment

Substitute decision making

• the Act allows people, while they retain capacity, to nominate an individual to take healthcare decisions on their behalf when they lose capacity
  • the Act creates a new lasting power of attorney (LPA), which replaces and extends the enduring power of attorney, whose powers related only to management of property and affairs. Anyone creating an LPA can set conditions on the exercise of the powers, and it does not extend to decisions relating to life-sustaining treatment unless that is explicitly stated
    • there are two types of LPA, the property and affairs LPA and the personal welfare LPA
      • the personal welfare LPA covers personal, welfare and health care decisions, including decisions relating to medical treatment. Although an LPA in relation to property and affairs can be used by the attorney even when the donor still has capacity, an LPA dealing with personal welfare can only operate if the individual lacks capacity in relation to the issue in question
  • before an LPA can be used, it must be registered with the Office of the Public Guardian

Advance decisions refusing treatment

• the Act gives statutory force to advance decisions refusing treatment. Advance decisions will be binding on doctors if:
  • The person making it was 18 or older and had the necessary capacity;
  • It specifies the treatment to be refused and the circumstances in which the refusal is to apply;
  • The person has not subsequently appointed an attorney to make the decision;
  • The person has not done anything clearly inconsistent with the directive;
  • The person does not have capacity at the time the decision has to be enforced
  • an advance refusal will apply only to life-sustaining treatment where it is in writing, signed and witnessed and contains a statement that it is to apply even when life is at risk
  • in an emergency or where there is doubt about the existence or validity of an advance decision, doctors can provide treatment that is immediately necessary to stabilize or to prevent a deterioration in the patient until the existence, and the validity and applicability, of the advance decision can be established

Independent mental capacity advocates (IMCAs)

• The Act creates a statutory advocacy service for the first time in England and Wales. Where a decision needs to be made on behalf of an incapacitated adult in relation to either serious medical treatment or place of residence, and there is nobody close to the patient (who is not a paid carer) with whom to discuss it, then an advocate must be appointed
  • an IMCA cannot be instructed if an individual has previously named a person who should be consulted about decisions that affect them, and that person is willing to assist, or they have appointed an attorney under a personal welfare LPA or the Court of Protection has appointed a welfare deputy to act on the patient's behalf. There is also no duty to instruct an IMCA where there is a need to make an urgent decision, for example, to save a patient's life. If a patient requires treatment whilst a report is awaited from an IMCA, this can be provided in the patient's best interests. It is also not necessary to instruct an IMCA for patients detained under mental health legislation

Reference:

• 1. BMA (2008). Mental Capacity Act Tool Kit