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Author(s)

Simon Robinson, Five Paper

(This article was originally published by Westlaw Insight)

Introduction

Mental Capacity – the Mental Capacity Act 2005

The Mental Capacity Act 2005 (MCA) establishes a comprehensive legislative framework governing issues relating to capacity and decisions made on behalf of people who lack or may lack the mental capacity to take specific decisions for themselves. The MCA updates and establishes a statutory basis for the former common law principles on capacity as well as best practice principles.

The MCA has a positive nature with the aim of recognising and supporting personal autonomy. It includes provisions to ensure that people have appropriate support to enable them to make their own decisions and to be involved in decision-making processes to the fullest extent possible. The MCA creates new bodies to oversee and implement the statutory framework: the Court of Protection and the Office of the Public Guardian. The MCA creates Lasting Powers of Attorney to enable people to plan for a loss of capacity as well as the roles of Deputy and Independent Mental Capacity Advocate (IMCA). As with the Mental Health Act 1983, the MCA also creates a statutory Code of Practice to provide guidance, and to which health and social care professionals, public authorities and the courts must have regard. The Court and the Code encourage parties to use mediation to resolve disputes. Mediation can be particularly helpful in addressing disagreements as to a person’s best interests.

The MCA was amended in 2007 to include a specific statutory regime to manage deprivation of liberty - the deprivation of liberty safeguards (DoLS) – with their own statutory Code. Deprivation of liberty is covered in another article on Westlaw Insight.

Overview of Topic

  1. The MCA at s.1 sets out five guiding principles that underpin and inform its operation. The MCA Code (‘the Code’) at paragraph 2.2 makes it clear that these principles “apply to any act done or decision made under the Act”. The Code also comments that the principles when applied to the MCA’s decision-making framework will help people to take appropriate action and find solutions in difficult or uncertain situations. When considering any decision or issue to which the MCA applies, it is prudent to keep these principles firmly in mind. This helps to ensure a person centred approach to the issues.
  1. Presumption of capacity: S.1(2). All adults are presumed to have capacity. The Code at paragraph 2.3 states that every adult has the right to make their own decisions unless there is proof that they lack capacity to make a particular decision. This presumption can be rebutted if there is acceptable evidence that the person is not capable of making the decision in question.
  1. The Court of Protection can determine the issue of capacity. The test for the engagement of s.48, making interim orders or directions, is whether there is evidence giving good cause for concern that P may lack capacity in some relevant regard. This is a lower standard than that of evidence necessary to rebut the presumption.
  1. Note: the fact that someone needs help to make the decision or communicate that decision does not mean they lack capacity (Code: 2.5).
  1. Children and young people. In general, the MCA only applies to people aged 16 years and over. Note: children under 16 years will be covered by the common law test of Gillick competency: Gillick v West Norfolk and Wisbech Area Health Authority [1986] 1 AC 112. Young people aged 16 – 17 are presumed to have capacity to consent to dental, medical and surgical treatment. Where the MCA applies, decisions made about the person’s care or treatment may be made under the provisions of the MCA in the person’s best interests. In these situations, whilst parental consent is not necessary, those with parental responsibility should be consulted.
  1. Helping the person to make their own decisions: S.1(3). A person must not be treated as unable to make a decision unless all practical steps to help him to do so have been taken without success. The Act and the Code (paragraph 2.6) stress that steps must be practical. What is practical depends on the particular circumstances at the time. In an emergency situation, it may not be practical to take some steps which when there is more time and the situation less acute, could be practical. Supporting people to be as involved as possible in decision-making can help to prevent unnecessary interventions (Code: 2.6).
  1. Unwise decisions: S.1(4) - a person is not to be treated as unable to make a decision merely because they make an unwise decision. This principle protects personal autonomy, and guards against the ‘protection imperative’. Whilst making what appears to others to be an unwise decision does not automatically mean that a person lacks capacity, an unwise or irrational decision could trigger a capacity assessment (Code: 2.11). For example, where an older person wishes to make a gift of significant value or prefers to remain at home rather than move into care. Heart of England NHS Foundation Trust v JB [2014] EWHC 342 (COP)
  1. Duty to act in the person’s best interests: S.1(5) where someone lacks capacity to make a particular decision, their best interests must be the basis for all decisions made or actions taken on their behalf (Code 2.12). S.4 deals further with best interests and the assessment of these. Assessing ‘best interests’ requires respectful attention to the person’s wishes, beliefs and values. It is the person who is the subject of the assessment, not the decision/act to be taken. Appropriate respect for a person’s wishes and feeling can mean that a decision is not in a person’s best interests – even where that decision includes life saving treatment: Wye Valley NHS Trust v B [2015] EWCOP 60
  1. Duty to consider less restrictive alternative: S1(6) – before any act is taken or decision made in relation to someone lacking capacity, the decision maker or actor must consider whether it is possible to act or decide in a way that is less restrictive of the person’s rights or freedoms (Code: 2.14) - including considering whether it is necessary to act or make a decision at all. Where there is a range of options, the decision-maker should consider which of these is the less restrictive one. However, the decision or action must be in the person’s best interests, so the less restrictive alternative may not be the one that is in the person’s best interests to take.
  1. Defining a lack of capacity. S.2(1) defines lack of capacity. It is the ‘core determinative provision’ - PC and NC v City of York Council [2013] EWCA Civ 478 at para 56. There are two limbs:

1.  Functional: whether P is ‘unable to make a decision for himself’

2.  Diagnostic: whether that inability is because of ‘an impairment of, or a disturbance in the functioning of, the mind or brain’. It does not matter whether the impairment or disturbance is permanent or temporary (s.2(2))

  1. The fundamental point is that capacity must be assessed in relation to the particular decision at the time this needs to be made. Often referred to as capacity being time specific and issue specific. It is a mistake to treat capacity as a global issue affecting every decision a person needs to make.
  1. The test has three stages: (1) is an impairment or disturbance in the functioning of P’s mind or brain? (2) is P unable to make a decision? (3) is there a sufficient causative connection between the impairment/disturbance and the inability to make a decision. This causative nexus is essential and so any assessment must consider it.
  1. S.2(3) establishes that a person should not be labelled as incapable merely by reference to his age, appearance or his particular ‘condition’ or behaviour which might lead someone to make unjustified assumptions about his capacity. ‘Condition’, ‘behaviour’, and ‘appearance’ all have a wide scope (Code: 4.7 – 4.9) and can include disabilities, medical conditions, race, religious dress, tattoos or extroverted/introverted behaviour. This helps guard against assumptions or misunderstandings influencing the assessment.
  1. Diagnostic test: often it will be for a clinician to provide a diagnosis. If the impairment can be temporary it is important to explain why the decision cannot wait until circumstances have changed before taking the decision. For example, waiting until P has sobered up before considering undertaking a medical procedure.
  1. Functional test: s.3(1) - P is unable to make a decision for himself if he is unable to:

·  Understand information relevant to the decision

·  Retain that information

·  Use or weigh the information as part of the decision making process

·  Communicate the decision (by any means)

  1. The person must be provided with information relevant to the decision, and be able to understand this. P doesn’t have to understand every element, only the ‘salient factors’. P must not be presented with a ‘blank canvas’, but detailed information, in an appropriate and accessible format, so that their capacity to weigh up those options can be fairly assessed: CC v KK and STCC [2012]EWHC 2136 (COP). This includes reasonably foreseeable consequences of deciding one way or the other or not making the decision: s.3(4).
  1. Long term retention of the information is not required. P only needs to retain the information long-enough to make the decision – s.3(3).
  1. To be able to use or weigh the relevant information, P must have “the capacity actually to engage in the decision-making process itself and to be able to see the various parts of the argument and relate the one to the other” – The PCT v P, AH & The Local Authority [2009] COPLR Con Vol 956 at para 35. It is important to be aware of the danger of conflating a seemingly irrational decision with an inability to make one.
  1. Before treating P as unable to communicate, it is important to make all practical and appropriate efforts to help them communicate. The Code at paragraphs 4.24 – 4.25 gives examples of these. There are some situations where a person is not able to communicate, for example, if unconscious or in a coma, and here the person can be treated as unable to make the decision.
  1. Reasonable belief of lack of capacity. Carers (formal or family/friends) and care workers may need to make relevant decisions in order to provide day-to day care or treatment to a person. It will often not be appropriate or necessary for them to carry out or be able to carry out a formal capacity assessment. It is sufficient for them to ‘reasonably believe’ that the person lacks capacity, and must be able to point to objective reasons for that belief: Code: 4.44 – 4.45.
  1. Best interests – s.4. S.4 becomes relevant only once it has been established, or there are reasonable grounds for believing, that a person lacks capacity to make the decision in question and so needs someone to decide or act on his behalf. S.4 cautions against determining P’s best interests merely on the basis of his age, appearance or his particular ‘condition’ or behaviour which might lead someone to make unjustified assumptions about might/might not be in his best interests. S.4 requires the person determining best interests to consider all of the ‘relevant circumstances’. S.4(11) defines these as those of which that person is aware, and which it would be reasonable to regard as relevant.
  1. S.4 sets out a ‘best interests checklist’. These can be summarised as:

·  Consider if the person (P) will regain capacity in relation to the issue and if so when? (s.4(3))

·  Encourage P’s participation in decision-making process/act as far as is reasonably practicable (s.4(4)

·  Consider as far as is reasonably practicable, P’s past and present wishes and feelings, the beliefs and values that would be likely to influence his decision if he had capacity, and any other factors P would be likely to consider (s.4(6))

·  If practical and appropriate to consult, take into account the views of anyone named by P as someone to be consulted, anyone caring for P or interested in his welfare, any done of a Lasting Power of Attorney, any Court of Protection appointed Deputy (s.4(7))

·  In relation to life-sustaining treatment, not be motivated by a desire to bring about P’s death (s.4(5)).

None of the listed factors has automatic precedence, and the weight to be attached to them depends on P’s particular circumstances. Sometimes, one or more may be of ‘magnetic importance’ in influencing what is in P’s best interests: ITW v Z [2009] EWHC 2525 (Fam) at 32.

  1. Life-sustaining treatment. S.4B permits a person to be deprived of their liberty if this is necessary for life-sustaining treatment to be provided or to carry out a vital act in order to prevent the person’s condition deteriorating whilst a decision from the Court of Protection is obtained.
  1. Acts in connection with care or treatment. S.5 enables carers and health and social care professionals to carry out acts which are necessary in order to provide care and treatment to a person who lacks capacity. S.5 gives protection from liability for these necessary acts, and so they are performed as though the person had capacity and consented to them. The Code at paragraph 6.5 provides examples.
  1. The person wishing to act (D) must ‘reasonably believe’ that (s.5(1)(b)) (i) the person lacks capacity and (ii) it will be in P’s best interests to do the act.