Mental capacity Act & DOLS

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 Mental Capacity act 2005 has been in force
since 2007
 Primary purpose to promote and safeguard
decision making within a legal framework
 This is done in 2 ways
1. People 16+ who are unable to make all or
some decisions for themselves
2. Support to those who are 18+ who have
capacity and choose to place for their future

The Mental capacity Act (MCA) 2005 applies to
everyone involved in the
Care, Treatment, Support
- Of people who are 16+ who are unable to
make decisions for themselves
- Of people who are 18+ who have capacity
and choose to plan for their future

The MCA also provides support and guidance
for less formal carers

The MCA 5 statutory principles are the
benchmark and must underpin all acts carried
out and decisions taken in relation to the Act

Anyone caring for or supporting a person who
may lack capacity could be involved in
assessing
capacity and must follow the two stage test

The MCA is to empower those in health and
social care to assess capacity themselves rather
than rely on expert testing

Understanding and using the MCA supports
practice for example the application of the
Deprivation of Liberty Safeguards

All professionals have a duty to comply with
the
Code Of Practice

If capacity is lacking follow the checklist
described in the Code to work out the best
interests of the individual concerned

The Act is underpinned by five key principles
(Section 1, MCA)

Principle 1: A presumption of capacity
– Every adult has the right to make their own
decision and must be assumed to have
capacity to do so unless is it proved
otherwise

Principle 2: Individuals being supported to
make their own decisions
- A person must be given all practicable help
before anyone treats them as not being able
to make their own decisions

Principle 3: Unwise decisions
- People have the tight to make decisions that
others might regard as unwise or eccentric

Principle 4: Best Interests
- Anything done for or on behalf of a person
who lacks mental capacity must be done in
their best interests

Principle 5: Less Restrictive option
- Someone making a decision or acting on
behalf of a person who lacks capacity must
consider whether it is possible to decide or
act in a way that would interfere less with the
person's rights & freedoms of action, or
whether there is a need to decide or act at
all.

Sections 2 – 4 MCA
Under the act you are required to carry out an
assessment of capacity before carry out any
care or treatment having taken into account
the 5 key principles

Sections 2 – 4 MCA
You should also ensure that the more serious
the decision that is required the more formal
the assessment process should be

Workers are required to be aware of when there
is a need for capacity to be assessed
- Someone’s mind or brain is affected by
illness or disability
- Lack of capacity might not be a permanent
condition

- Assessments of capacity should be time and
decision specific

- Assessments of capacity should not be based
on age, appearance, condition or behaviour
alone

The MCA has a 2 stage functional test of
capacity which helps to decide whether a
person has the capacity to make a specific
decision

Stage 1
Is there an impairment of or disturbance in the
functioning of a person’s mind or brain? If
so.....

Stage 2
Is the impairment of or disturbance sufficient
that the person lacks the capacity to make a
particular decision?

The MHA states the a person is unable to make
their own decision if they cannot do one or
more of the following 4 things:
1. Understand information given to them
2. Retain that information long enough to be
able to make a decision
3. Weigh up the information available to make
the decision
4. Communicate their decision

Communicate their decision – this can be
written, verbal, sign language or muscular
movement including squeezing a hand or
blinking an eye
The act is clear that communication methods
must be fully explored before deciding on
lack of capacity which is only based on
inability to communicate

The act is clear that communication methods
must be fully explored before deciding on
lack of capacity which is only based on
inability to communicate
In addition you must involve family, friends,
carers and professionals to fully explore
communication

The MCA states that you should base the
outcome of your assessment on the balance
of probabilities
– meaning it is more likely than not that the
person lacks capacity
- Your records should clear show how you
came to this outcome in this particular
decision

When a person is assessed as lacking capacity
then the person who acts on their behalf is
known as the “Decision-Maker”

The “Decision-Maker” is usually someone who
is involved with the persons ongoing care on
a day to day basis, they maybe a professional
or a carer, a social worker or a nurse

The “Decision-Maker” must make decisions
which are in the best interest of the person
who is said to be lacking in capacity

The “Decision Maker” makes decisions to do
with regard to treatment, care or
accommodation needs

There is an non exhaustive checklist of factors
that “The Decision-Maker” must work
through in deciding what is in the person’s
best interest

 Attorneys appointed under Lasting Powers of
Attorney (LPAs)
 Court of Protection and Deputies
 The Public Guardian
 Independent mental capacity advocates
(IMCA)
 Advance decisions to refuse treatment
 A criminal offence

Attorneys appointed under Lasting Powers of
Attorney (LPAs)
- this allows people over the age of 18 to
formally appoint a person or person who can
look after their needs including health,
welfare and financial decisions if at sometime
they are not able to due to lack of capacity

Court of Protection and Deputies
- A new court and public official created to
protect people who lack capacity and to be
responsible for supervising those that make
decisions on that persons behalf.
- The court can appoint Deputies to those who
are deemed to have ongoing lack of capacity
for example

The Public Guardian

Independent mental capacity advocates (IMCA)

Advance decisions to refuse treatment

A criminal offence

Mental capacity Act & DOLS

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