Mental Capacity Act 2005 [MCA]

The Mental Capacity Act provides a legal basis which underpins all work undertaken with people who lack ‘mental capacity’ and it sets out the requirements for assessing mental capacity. The Act provides principals which all people need to consider when working with someone who does/may lack capacity, and the requirements for making decisions in peoples ‘best interest’s’.

An IMCA can be instructed for a person who lacks mental capacity to make a specific decision if they have nobody ‘appropriate to consult’.

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Mental Capacity:

Capacity is often a misunderstood term, whilst it can be interpreted in various ways depending on the situation and environment, with respect to the Mental Capacity Act its definition is “a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.”

To put this in simpler terms - a person lacks capacity if they cannot make an informed decision or choice due to a condition, injury or impairment.

Without the [evidenced] completion of an [MCA compliant] assessment of mental capacity, everyone must be assumed to have capacity.

*People cannot be ‘thought’ or ‘assumed’ to lack mental capacity due to a condition*

A mental capacity assessment must be decisions specific. It must state the decision which is required (that the person is having their capacity assessed with regards to) and include relevant evidence in accordance with the MCA guidance.

*People cannot be assessed as lacking capacity to make ‘important decisions’*

*An assessment based on an accommodation decision cannot be used for a medical treatment decision*

A mental capacity assessment must be time specific. It must specify the time it was completed and is only relevant at that time. It should consider the likelihood of fluctuation, change or duration (if relevant) of mental capacity.

*An assessment of mental capacity must be reassessed if there are reasonable grounds to suggest any relevant factors have changed, regardless of timescales*

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Best Interests

Under the Mental Capacity Act ‘best interests’ refers to a process of ensuring that decisions made for people who lack mental capacity take into consideration all factors of a person’s situation, and that the outcome/s of any decision are based on the primary interests of the person – not what resources or funding is available, or in the interests of other persons or organisations who are involved.

For example, a person with dementia who is assessed as lacking the mental capacity to decide if they need to move from their marital home into a care home will require a best interest decision. The outcome of this decision cannot be made because, for example, the persons wife/husband cannot continue to care for them at home. Consideration of all factors must be given; e.g. could the person be supported to remain at home with a package of care?

• Best interest decisions MUST consider and provide the ‘least restrictive option’ in accordance with the fifth Mental Capacity Act principal [see below].
• Best interest decisions MUST consider the positives and negatives of all available options – this is usually called a best interest ‘balance sheet’. It ensures that contributing factors and options are evidenced, not simply assumed!
• Best interest decisions MUST involve the person as fully as possible – this is where IMCA’s can be instructed to support the persons views in planning, meetings, assessments and decision making.

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Appropriate to consult:

An IMCA can be instructed when “…there is no person, other than one engaged in providing care or treatment for the person in a professional capacity or for remuneration, whom it would be appropriate for them to consult….” - Mental Capacity Act 2005 (section 38(1)b, 39(1)b).

If an involved person is ‘appropriate to consult’ they must be involved (family, friends, neighbours, etc.) or have an interest or wish to advocate on the persons behalf with regards to the required decision. So long as they are working in an ‘unpaid’ capacity, and the person without capacity does not object to them, they can be considered appropriate to consult and an IMCA is not required.

If there is an involved person who is supporting the person in an ‘unpaid’ capacity, but they disagree with other family/friend’s views or the Local Authorities proposal/s this is NOT sufficient grounds to instruct an IMCA. The involved person must either be unable to engage in giving the persons views (even if unavailable to attend meetings), believed not to be acting in the persons ‘best interest’s’, or, if the person objects to them; before an IMCA can be instructed.

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Southern Advocacy Service ‘Independent Mental Capacity Advocates’ [IMCA’s]:

We provide IMCA’s for people who have been assessed as the lacking capacity to make a specific decision regarding:

• A change of permanent accommodation
• Safeguarding investigations
• Serious medical treatment

We support people who have no person deemed ‘appropriate to consult’ by the Mental Capacity Act

Citation: https://www.scie.org.uk

Our IMCA’s focus on supporting people in four main areas; by gathering information, evaluating the information, making representations on the persons behalf, and, by challenging decisions if required.

Our IMCA’s ensure that the views of the people we support are obtained comprehensively (as much as is practically possible to achieve). We use a range of skills, resources and networks to ensure that people’s views are accurately obtained, recorded and communicated to ensure their legal rights are upheld.

Our IMCA’s understand the legislation and guidance which gives them the ability to obtain and assert people’s (who lack capacity to make the specific decision) views and ensure they are given due consideration in any decision making and outcomes. In addition, we ensure that the assessments of people’s mental capacity are lawfully compliant.

Our IMCA’s make sure that people’s best interests are upheld during the decision making process. We will make appropriate challenges if we feel that the persons best interests, or views, have not been appropriately considered and/or the outcome is not in their best interests.

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Five Principals of the Mental Capacity Act:

1, 2 & 3 - are to be considered before someone can be deemed to ‘lack mental capacity’

4 & 5 – are to be considered following a ‘negative’ mental capacity assessment

Mental Capacity Act principals:

1. A presumption of capacity – You cannot ‘think’ someone lacks mental capacity, it must be ‘formally’ and accurately assessed.
2. Individuals being supported to make their own decisions – You cannot assess someone to not have mental capacity until all ‘reasonable’ steps have been taken to help them understand the relevant information, to make an informed decision.
3. Unwise Decisions – People have the right to make unwise decisions, this alone cannot constitute a lack of mental capacity.
4. Best Interests – All decisions made about a person without mental capacity must be in their best interests - not that of any authority, service or other person.
5. Least Restrictive Option – Any restrictions or decisions about a person must be the least restrictive option available.

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