Making Decisions

Mental Capacity Act 2005

The Act is based on five principles that apply to all adults.

1. The presumption of mental capacity unless proved otherwise.
2. The right to appropriate help and support before it is decided that a person lacks capacity.
3. Individuals with Capacity may make unwise or eccentric decisions.
4. Everything decided on an incapacitated person’s behalf must be done in his/her best interests.
5. Everything done must be the least restrictive of the individual’s rights and freedoms.

Assessing the capacity to act and taking decisions on behalf of a person without capacity

• The Act makes clear that incapacity applies not to an individual generally but to a particular decision.
• To be incapable of making a particular decision an individual must not be able to understand, retain and weigh up information (including possible consequences) or communicate the decision. A failure to be able to achieve any ONE of these factors renders the person incapacitated to make this particular decision.
• Decision-makers must always follow the best interests of the individual in making a decision.
• An individual’s wishes may be put into writing as an “Advanced Decision” at a time when they had the capacity to consent.
• Carers and families have a right to be consulted about best interests, but they cannot consent on behalf of another person unless they have “Lasting Power of Attorney” or they are appointed to make a decision by the Court of Protection.
• Those caring for or treating an individual are protected from liability as long as they have properly assessed capacity and act in best interests in accordance with the Core Principles, and providing that their actions would not be illegal in any event.
• Individuals may not be restrained or deprived of their liberty unless in cases of harmto themselves. Such restraint should be proportionate.
• Some decisions are excluded. No-one maymake a decision on behalf of an incapacitated person concerning family relationships (including, marriage, sexual relations and adoption), Mental Health Act issues or voting.

New Bodies

The act sets up two new bodies

1. A new Court of Protection
2. A new Public Guardian

Designated decision makers

A Lasting Power of Attorney can be appointed by the person lacking capacity to make decisions, including medical and welfare decisions.
A deputy can be appointed by the Court of Protection, unless the court wishes to make its
own decisions.

Three new key powers

1. An independent mental capacity advocate (ICMA) must or may (according to circumstances) be appointed to represent the wishes of individuals, to bring to the attention of decision makers all relevant factors and to challenge the decision of decision makers if necessary.
2. Advance decisions to refuse treatment.
3. A new criminal offence is created to deal with the ill treatment or neglect of an incapacitated person.

The Social Care Institute for Excellence (SCIE) have produced a range of leaflets, training packs and videos on this subject available from:

Social Care Institute for Excellence
Fifth floor
2-4 Cockspur Street
London SW1Y 5BH
Tel: 020 7024 7650
Email: This email address is being protected from spambots. You need JavaScript enabled to view it.
Web: www.scie.org.uk

The British Institute for Learning Disabilities (BILD) alsop roduce some useful guidance and advice for the families and carers of learning disabled persons. Their guide to Deprivation of Liberty Safeguards (DoLS) is available to download at:-

www.bild.org.uk/humanrights/docs/

 

Easy to complete Lasting power of attorney forms for health and care decisions can be found here , a means tested fee applies