The Mental Capacity Act 2005

The Mental Capacity Act 2005 became law from April 2007. The Act reflects the development of case law relating to mental capacity.

Mental capacity is broadly speaking, the ability of an individual to make decisions regarding specific elements of their life. It is also sometimes referred to as 'competence'.

Capacity is not an absolute concept. Different degrees of capacity are required for different decisions, with the level of competence required increasing with the complexity of the decision.

In English law prior to this Act, if a person lacked mental capacity to consent, no one could legally give consent on their behalf.

However from October 2007 new Personal Welfare Lasting Powers of Attorney (LPAs) will enable appointed attorneys or donees to make a number of decisions about a person’s life when the person has lost the capacity to make those decisions. These may include the power to give or refuse consent to medical examination or treatment.

The key principles of the Mental Capacity Act

Section 1 of the Act contains five key principles as follows:

Presumption of capacity

A person must be assumed to have capacity unless it is established that he or she lacks capacity.

Maximising decision-making capacity

A person is not to be treated as unable to make a decision unless all practicable steps to help him/her to do so have been taken without success.

Unwise decisions

A person is not to be treated as unable to make a decision because he or she makes an unwise decision.

Best interests

An act done, or decision made, under the Mental Capacity Act for or on behalf of a person who lacks capacity must be done or made in his/her best interests.

Least restrictive alternative

Before an act is done, or a decision made, regard must be had as 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.

Applying the Act

The Act sets out a single clear test for assessing whether a person lacks capacity to take a particular decision at a particular time. It is a 'decision-specific' test. The reason for the inability to make a decision must be because of an impairment of, or disturbance in the functioning of, the mind or brain, whether this be permanent or temporary.

Nobody should be considered 'incapable' as a result of a particular medical condition or diagnosis. A lack of capacity cannot be established merely by reference to a person’s appearance, or age, or any condition or aspect of a person’s behaviour which might lead others to make unjustified assumptions about capacity.

The Act sets out four criteria for deciding whether a person lacks capacity. Taken together these constitute a capacity test. To fail it he or she must be unable:

• to understand the information relevant to the decision or
• to retain that information, or
• to use or weigh that information as part of the process of making the decision or
• to communicate the decision (whether by talking, using sign language or any other means).

For some people with impaired cognitive functions, their ability to meet some or all of these criteria will fluctuate over time. Some people, for example those in the early stages of dementia, are able to retain information for a limited period only. The fact that a person is able to retain the information relevant to a decision for a short period only may not prevent him or her from being regarded as able to make the decision.

It will not usually be necessary to document the assessment of a person’s capacity to consent to routine and low-risk interventions, such as providing personal care or taking a blood sample.

When assessments of capacity are being made about choices regarding significant actions, it is essential for health and social care professionals to clearly document the process of the assessment and the evidence that the person lacked capacity to take the decision in question.

Lasting Powers of Attorney

From October 2007 there will be two new and different Lasting Powers Of Attorney:

• a property and affairs LPA
• a personal welfare LPA.

The property and affairs LPA replaces the existing Enduring Power of Attorney (EPA). Existing EPAs will remain valid and subject to the existing rules (under the Enduring Powers of Attorney Act 1985) until such time as they cease through death or other cause.

The personal welfare LPA, for the first time, will allow the attorney to make a variety of decisions regarding the donor’s welfare, including healthcare and medical treatment. However the donor can add restrictions or conditions on the attorney’s power to act.

An attorney cannot make decisions to consent to, or refuse life-sustaining treatment, unless the donor has specifically stated in the LPA that they want the attorney to have these powers, Any decision the attorney makes must always be in the donor’s 'best interests'.

Before an attorney can act under any LPA it must be registered with the Office of the Public Guardian. An LPA can be registered at any time and does not have to wait until the donor loses capacity.

More information

For more information on the Mental Capacity Act, please contact Paula Nigliazzo, Information, Advice & Advocacy Officer, Age Concern Waltham Forest on 020 8558 0455/paulan@ageconcernwf.org.uk.

The London Borough of Waltham Forest's website provides information about the local implementation of the Mental Capacity Act, including many links to other documents and websites.

Information about the Mental Capacity Act for care professionals is available on the Department of Health's website.