The Mental Capacity Act: a guide

The Mental Capacity Act makes sure that adults can make decisions for themselves, or that any decisions made for them are in their best interests.

The Mental Capacity Act gives people the power to make decisions for themselves when possible. It protects people who lack capacity by putting them at the centre of the decision-making process. It makes sure they are involved as much as possible in any decisions made on their behalf, and that these decisions are made in their best interests. It also allows people to plan ahead for a time in the future when they might lack the capacity, for any reason, to make decisions for themselves.

We explain what we mean by ‘lack capacity’ further down the page.

The Mental Capacity Act sets out who can make decisions, in what situations, and how it should be done. The Act is designed to protect, and give back power to, vulnerable people who may lack capacity to make certain decisions. This might be due to the way their mind is affected by illness or disability, or by the effects of drugs or alcohol. It is also to support those who currently have capacity and are choosing to plan for their future.

You can find out more in the Mental Capacity Act Code of Practice. The code of practice gives guidance to people who:

• work with people who can’t make decisions for themselves
• care for people who can’t make decisions for themselves

When we say a person is ‘lacking capacity’, we mean that they:

cannot make a particular decision or take a particular action for themselves at the time the decision or action needs to be taken.

Lacking capacity is decision specific. This means that someone may lack the capacity to make some decisions, but have the capacity to make other decisions. For example, they may be able to make small, everyday decisions like what to wear or what to eat, but not be able to make more complex decisions, like how they are cared for.

The law says that when someone lacks mental capacity, they are unable to do one or more of these things:

• understand information given to them
• retain that information long enough to be able to make a decision
• weigh up the information available to make a decision
• communicate their decision

We have to decide whether or not someone lacks capacity. We call this assessing capacity, or a ‘capacity assessment’.

By law, we must follow the five principles of the Act:

1. A person must be assumed to have capacity unless it is established that they lack capacity.
2. A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
3. A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
4. An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.
5. Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.

someone from the council (for example, a social worker or occupational therapist) is assessing your capacity?

When we’re assessing your capacity, we will:

• explain to you what a capacity assessment is
• explain to you why we're assessing your capacity
• explain to you what a decision is being made about
• put you at the centre of the assessment process
• ask you questions about the decision to see if you can understand, think about, remember, and tell us your decision (if you need support to do this, for example help with writing or from an interpreter, this will be arranged) 
• ask you what your thoughts and wishes are
• ask you who you’d like us to speak to as part of the decision-making process

we (the council) are assessing your family member’s capacity?

When we’re assessing your relative’s capacity, we will:

• put your relative at the centre of the capacity assessment, because their thoughts and wishes are very important
• consult with you as part of the assessment process.

We will need you to tell us about your relative’s wishes and feelings, and what is important to them. We will also listen to your views on the decision to be made.

The Deprivation of Liberty Safeguards (DoLS) give legal protection to vulnerable people in care homes or hospitals, who cannot consent to the care and treatment they need, because they lack capacity. (We explain what ‘lacks capacity’ means above).

Most people who need the protection of the DoLS have moderate to severe learning disabilities, dementia, or a neurological condition like a brain injury.

The DoLS were introduced after the legal judgment from the European Court of Human Rights about an autistic man with a learning disability who lacked the capacity to decide whether he should be admitted to hospital for treatment. He was admitted to hospital on an informal basis, but was then prevented from leaving the hospital with his carers. His carers challenged the hospital and took the case to the Court, who found that he had been deprived of his liberty unlawfully, which was a breach of his human rights.

In March 2014, the Supreme Court of the United Kingdom decided that when an individual who lacks capacity is under the continuous or complete supervision and control of others, and they are not free to leave their care home or hospital, they’re being deprived of their liberty. This is referred to as the ‘acid test’.

In most cases, care and treatment is necessary and is being delivered in the person’s ‘best interests’ under the Mental Capacity Act 2005. A DoLS assessment, completed by health and social care professionals, will decide whether the restrictions in the person’s care plan are necessary to protect them from harm. Professionals must be satisfied that there is no suitable alternative care plan which could be used, which would not deprive the person of their liberty.

The Managing Authority (the hospital or care home where the person is staying) must apply to its Supervisory Body (the council responsible for the hospital or care home) for authorisation to begin the care plan.

The Supervisory Body must conduct six assessments to confirm that the deprivation of liberty is lawful and appropriate. A doctor and a social worker, nurse or occupational therapist who have undergone further training to become a Best Interests Assessor (BIA) in the MCA/DoLS will complete the assessments. The BIA will also look for, and may recommend, less restrictive care options if necessary, for example, returning home with a package of care. Authorisation to make the deprivation of liberty lawful must then be sought from the council or in some cases the Court of Protection to ensure the person’s human rights.

The Supervisory Body will decide how long the authorisation lasts, based on the proposed care plan. This should be for as short a time as possible, and for no longer than 12 months.

If at any point the person no longer needs to be deprived of their liberty or their circumstances change, then the authorisation should be reviewed and, where appropriate, ended.

As a person who is deprived of their liberty, or a friend or family member of someone deprived of their liberty, you can have a say. You’ll be consulted at some point during the assessment.

Everyone who is deprived of their liberty under the DoLS can have a Relevant Person's Representative (RPR). This is normally a friend or family member who health and social care staff contact and keep informed about all matters relating to the care or treatment of the person, for as long as the DoLS authorisation lasts. The RPR has a right to request a review and challenge the DoLS authorisation at any time.

Support from an independent advocate is also available for the relevant person and their representative.

More information is available by speaking to a member of the Middlesbrough Council DoLS team on 01642 729057.