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Mental Capacity Act and Deprivation of Liberty - FAQs

What is the Mental Capacity Act 2005?

The MCA is an Act of Parliament which provides a framework by which people who may not be able to make choices about their own welfare, can be assessed, and cared for safely.

How do we decide if a patient has capacity?

If a patient is believed to not have capacity to make decisions about their own welfare, the Act states that they should have this capacity assessed by an appropriately trained person, usually a GP or psychiatrist.

There are some underlying principles which should always be followed when assessing a person’s mental capacity;

  • Presumptions of capacity – at the start of the assessment, assume they have capacity
  • Maximising decision making capacity – support the individual to make decisions by giving as much information as possible
  • Right to make unwise decisions – people may make “unwise” decisions in the eyes of the assessor, but this does not mean they are wrong, or lack capacity
  • Best interests - any act done for, or any decision made on behalf of, someone who lacks capacity must be in their best interests
  • Least restrictive option - Any act done for, or any decision made on behalf of, someone who lacks capacity should be the least restrictive option possible

When does someone lack capacity?

If they cannot do one of the following;

  • Understand the information relevant to the decision
  • Retain the information for long enough to be able to make a decision
  • Use or weigh up the information as part of the process of making the decision
  • Communicate the decision by any possible method, such as talking, using sign language, squeezing someone’s hand and so on

Do all old people lack capacity?

When making decisions about capacity, the assessor should never assume lack of capacity on the grounds of;

  • Age
  • Appearance
  • Presence of a mental illness
  • Presence of medical condition or disability

What is best interest?

The underlying philosophy of the MCA is that any decision made, or action taken, on behalf of someone who lacks the capacity to make the decision or act for themselves must be made in their best interests.

Is loss of capacity permanent?

A patient may lack capacity permanently, due to a long term condition, or temporarily due to a short term illness or condition.

Can patients have capacity for some things but not for others?

A patient can lack capacity to make decisions about some things, whilst still having capacity to make decisions about others, for instance; they may not be able to decide how their finances are managed, but they can decide about their health.

When a MCA assessment is carried out, the assessor should record whether the lack of capacity is permanent or not, and about what the person is not able to make decisions.

Who makes decisions for patients who lack capacity?

Some people nominate a person to make decisions for them before they lack capacity by using an advanced directive; this is usually a next of kin.  However anyone can act as a decision maker for a person who lacks capacity; a friend, a relative, an informal carer, a professional carer, a doctor, a social worker, a nurse and so on. When decisions are made, the person who lacks capacity should still be involved as much as possible in the decision-making process.

In some circumstances the Court of Protection will nominate a “deputy” who is given the responsibility of being decision maker.

Can patients be restrained under the MCA?

If someone lacks the capacity to make decisions about their care, and it is decided that it is in their best interests for them to be deprived of their liberty (DOL), the person can be lawfully deprived of their liberty.  This usually means that they are housed in nursing or residential care, or kept in hospital.

What should the practice do when someone is assessed as lacking capacity or is Deprived of Liberty?

The lack of capacity and DOL should be recorded clearly in the notes, and the patients nominated decision maker, or deputy, should also be recorded in the record.

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