The Mental Capacity Act 2005
Some of our patients may not be able to make informed choices about their care and treatment, due to illness or disability (this is referred to as lacking capacity).
When this happens, decisions are made in the patient’s best interests, involving the patient and their family, carers and / or advocate.
The Mental Capacity Act (MCA) provides the framework for assessing whether a person has capacity to make a decision or not, and how decisions should be made in a person’s best interests.
We always start by assuming our patients have capacity to make decisions for themselves until there is evidence to suggest otherwise. Capacity is time and decision specific, and if there are concerns about a person’s capacity, this must be assessed for each individual decision being made; we always work to try and support people to make their own informed choices wherever possible.
The MCA requires that best interests’ decisions are person centred and take into account the person’s unique values, wishes and beliefs.
When decisions are made in a person’s best interests, the MCA requires that the person’s family or friends, their carers and / or advocate are consulted as part of making those decisions.
For more information on the Mental Capacity Act, please see the NHS website.
The MCA also enables people over the age of 18 to plan ahead when they have capacity, for a time when they may lack capacity in the future.
This includes:
Lasting Power of Attorney (LPA) – This enables a person to nominate an Attorney to act and make decisions on their behalf if they lack capacity in the future. There are 2 types of LPA:
- Property and Affairs - This type of LPA can be used when the person has capacity.
- Health and Welfare - This type of LPA can only be used when the person lacks capacity to make the decision for themselves.
If you hold an LPA for Health and Welfare, you may have legal authority to make certain decisions regarding care, support and / or treatment, on your relatives or loved one’s behalf, if they lack capacity to make those decisions for themselves.
We will ask to view and take a copy of the LPA document, this is important as it tells us how the attorneys can act (if there is more than one attorney), if there are any restrictions or decisions the attorney cannot make, and if the attorney has the authority to make decisions concerning life sustaining treatment.
The MCA also enables a person over 18 and who has capacity to make the decision at the time, to specify treatment that would not want in the future when they may lack capacity. These are known as Advance Decisions to Refuse Treatment (ADRT). If an ADRT is valid and applicable, they are treated the same as a decision made by someone who has capacity and legally the person cannot be given that treatment.
For further information regarding ADRTs please see the NHS website.
An ADRT can be overridden if it relates to treatment for mental health issues and the person is detained under the Mental Health Act.
