The Mental Capacity Act 2005
When we’re young, working and busy bringing up a family or travelling the world, it can be impossible to think that one day things will be very different. It’s hard to imagine being unable to communicate with loved ones, make rational decisions or in some cases even hold eye contact.
But this is a situation with which we may be faced in the future. Which is why it may be reassuring to know that there are legal protections put in place to ensure that those making decisions on our behalf will be acting in our best interests at all times.
The Mental Capacity Act (MCA) 2005: an overview
The Mental Capacity Act 2005 was drawn up to protect vulnerable people who do not have the capacity to make decisions for themselves. It covers anyone over 16 in England and Wales and provides a legal framework for decision making by health professionals, carers or family members.
It is particularly relevant to people who are in care or who have long-term conditions or mental health issues that mean they may require care in the future. That might be people with dementia, severe learning disabilities, severe mental illness or a sudden episode such as a stroke, brain injury or sudden accident.
One key element of the MCA is the understanding that capacity for making decisions can depend on what the decision is. While someone may be able to make everyday decisions such as what clothes to wear or whether they would rather visit the park or the shopping centre, they may lack the capacity to make a complex decision about financial matters.
It is also possible for mental capacity to fluctuate over time.
The Mental Capacity Act 2005 sets out five core principles.
The five key principles
- All adults have the right to make their own decisions. Unless it is proved otherwise, we should assume the person in front of us has the capacity to make their own decision.
- Wherever possible we should support people to make their own decisions. This might be by providing additional information as required, going over the information more slowly and in simple language, providing it in a different format or by allowing a longer time period over which to make the choice.
- Every adult has the right to make their own decision no matter how unwise you may judge it to be. Just because you believe it to be a bad decision or an unwise decision does not mean they must be lacking the capacity to decide for themselves.
- If you are tasked with making a decision on behalf of someone else who is deemed not to have capacity, the decision you take must be in their best interests. Where possible you should consult with others such as carers, close relatives and friends or anyone previously named by them.
- When acting under a Power of Attorney, any treatment or care provided must be the least restrictive option in terms of their basic rights and freedoms. That should include considering the option of doing nothing.
Deprivations of liberty
This is one element of the MCA that is particularly pertinent to care providers. In certain cases, where restrictions are placed on someone that are thought to be ‘in their best interests’, deprivation of liberty may be an issue. That effectively amounts to a breach of their human rights and freedoms.
The onus is on care providers, usually care home managers or healthcare professionals to recognise when this might be an issue and apply for the relevant authorizations. This is a system known as Deprivation of Liberty Safeguards and permission usually has to be granted via a local authority assessment.
What does this mean for you?
As an individual it can be reassuring to know that no matter what happens your rights to be able to make your own decisions remain in place. If you are caring for someone who is losing or has lost their mental capacity, it’s important to understand these five principles in order that you can support your loved one and work closely with health services and care providers to make the best decisions in very difficult circumstances.
One way to ensure that you are not put in a difficult situation, where the wrong decisions are made on your behalf, is to make your intentions clear while you’re still able to do so. Drafting an advance statement that sets out your beliefs, preferences and advance decisions regarding your future medical treatment can make sure that the people acting on your behalf understand what you would have wanted. This isn’t a legally binding document, but it may still put your mind at rest that you’ve shared your thoughts in a structured way.
You may also decide to grant a Lasting Power of Attorney (LPA) to another person (or people) you trust. This will ensure that where necessary they are the ones able to make decisions about your welfare and health or in relation to property and financial affairs. When acting under an LPA decision makers have a legal duty to ensure the decision making process follows all principles of the MCA. What’s more, if the person has capacity to make the decision in question they must do so themselves.
What does this mean for Promedica24?
At Promedica24, we make sure that all relevant members of our team are trained to understand and abide by the Mental Capacity Act 2005. Not just because it’s a legality but because we believe in giving the people in our care all the information they need to make informed decisions for themselves wherever possible.
If we’re caring for you and you become mentally incapable of making your own decisions, we promise we’ll do everything in our power to champion your needs, get the right people together and get you the right result.
It’s something we’ve always done and always will.
Find out more about our live-in care services.
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