There is a new law that can help - The Mental Capacity Act 2005
Making decisions
A guide for people who work in health
and social care
Helping people who are unable to make some decisions for themselves
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A guide for people who work in health and social care
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Making decisions
A guide for people who work in
health and social care
Helping people who are unable to make
some decisions for themselves
This booklet provides introductory information on the Mental Capacity Act 2005 and how it
will affect the way you work. It is not a statutory Code of Practice issued under the Mental
Capacity Act 2005 and is not a guide to how the law will apply to specific situations.
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This document has been produced by:
In association with the National Care Association:
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Acknowledgements
The Mental Capacity Implementation Programme (MCIP) published
this booklet. MCIP is a joint government programme between the
Department for Constitutional Affairs, the Department of Health, the
Public Guardianship Office and the Welsh Assembly Government
that has been established to implement the organisation, process
and procedures to launch the Mental Capacity Act in 2007.
We are very grateful to Sheila Scott, Chief Executive of the
National Care Association, who wrote this booklet assisted by Zoe
Sampson, Ruth Scott and Viv Shepherd. They were supported by
Nadra Ahmed and Dick Barton and three focus groups.
We are also very grateful to our Advisory Group which was made
up of organisations who work with or represent people who work in
health and social care. They played an important role in sharing their
views and perspectives on the booklet and helped us to reflect on
our work.
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Contents
1 Introduction 6
2 What is mental capacity? 7
3 What is the Mental Capacity Act and what changes will it introduce? 9
What is the Mental Capacity Act? 9
The Code of Practice for the MCA 10
What changes will the MCA introduce? 10
When does the Mental Capacity Act come into force? 12
4 The five principles of the MCA 13
5 Helping people to make decisions for themselves 14
6 Assessing capacity? 17
When should capacity be assessed? 18
The test to assess capacity 18
Challenging the result of an assessment of capacity 20
7 Best interests 21
What is ‘best interests’? 21
What do I do if there is a dispute about ‘best interests’? 23
8 The Independent Mental Capacity Advocate (IMCA) Service 24
9 Providing care or treatment to people who lack capacity 27
How will the MCA protect people who work in health
and social care? 27
Information for people who work in social care 27
Information for people who work in health care 28
The use of restraint 29
The Bournewood Safeguards 30
Protecting people who lack capacity from ill-treatment
or wilful neglect 31
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10 Providing care or treatment for people who have planned ahead 32
Lasting Powers of Attorney (LPA) 32
Advance decisions to refuse treatment 35
What are the requirements for advance decisions? 35
Advance decisions to refuse life-sustaining treatment 36
Conscientious objection 38
Liability of people who work in health and social care 38
Disputes and disagreements about advance decisions 38
Dealing with advance decisions that are made before October 2007 38
Statements of wishes and feelings and beliefs and values 39
11 Confidentiality and record keeping 40
Confidentiality 40
Record keeping 41
12 New public bodies and services created by the
Mental Capacity Act 2005 42
Court of Protection and deputies 42
The Public Guardian 43
13 Research involving people who may lack capacity 44
14 Interface with other legislation, policy and procedures 46
The MCA and the Mental Health Act 1983 46
The MCA and assessment processes across health and social care 47
The MCA and Social Security appointees 49
The MCA and Human Tissue Act 2004 49
The MCA and children and young people 49
15 What if I want to know more about the MCA? 51
16 Some useful contacts 53
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1. Introduction
About this booklet
This booklet tells you about a new law, the Mental Capacity Act
(MCA), which comes into force in England and Wales during 2007
and will affect the way you work.
The MCA will apply to everyone who works in health and social care
and is involved in the care, treatment or support of people aged
16 and over who live in England and Wales and who are unable to
make all or some decisions for themselves. The inability to make
a decision could be caused by a psychiatric illness (for example,
dementia), a learning disability, mental health problems, a brain
injury or a stroke.
People who work in health and social care such as doctors, nurses,
dentists, psychologists, occupational, speech and language therapists,
social workers, residential and care home managers, care staff
(including domiciliary care workers), support workers (including people
who work in supported housing) and any other health and social care
workers will be affected by the MCA and will need to know about it.
Although this booklet should give you a broad overview of the Act
and its main implications for you in your work, you should refer to
the Code of Practice for the Mental Capacity Act (see part 3), which
has more detailed information and guidance. There is also a list of
more detailed sources of information and a list useful contacts at
the back of this booklet.
This booklet is not about detention or compulsory treatment under
the Mental Health Act 1983. The 1983 Act is primarily about people
who are diagnosed as having a mental health problem which
requires that they be detained or treated in the interests of their own
health or safety or with a view to protecting other people.
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2. What is mental capacity?
Having mental capacity means that a person is able to make their
own decisions. The new law says that a person is unable to make
a particular decision if they cannot do one or more of the following
four things:
Understand information given to them.
Retain that information long enough to be able to make the
decision.
Weigh up the information available to make the decision.
Communicate their decision - this could be by talking, using
sign language or even simple muscle movements such as
blinking an eye or squeezing a hand.
We all have problems making decisions from time to time, but
the Mental Capacity Act is about more than that. It is specifically
designed to cover situations where someone is unable to make a
decision because the way their mind or brain works is affected, for
instance, by illness or disability, or the effects of drugs or alcohol.
A lack of mental capacity could be due to:
a stroke or brain injury
a mental health problem
dementia
a learning disability
confusion, drowsiness or unconsciousness because of an
illness or the treatment for it
substance misuse.
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The type of decisions that are covered by the MCA range from
day-to-day decisions such as what to wear or eat, through to more
serious decisions about where to live, having an operation or what
to do with a person’s finances and property.
Decisions that are not covered by the new law:
Some types of decisions (such as marriage or civil partnership,
divorce, sexual relationships, adoption and voting) can never
be made by another person on behalf of a person who lacks
capacity. This is because these decisions or actions are either
so personal to the individual concerned or because other laws
govern them and the Mental Capacity Act does not change this.
The MCA applies to situations where a person may be unable to
make a particular decision at a particular time because their mind or
brain is affected, for instance, by illness or disability, or the effects
of drugs or alcohol. For example someone may be unable to make
a decision when they are depressed but may be able to make the
decision when they are feeling better. It may be the case that the
person lacks capacity to make a particular decision at a particular
time but this does not mean that a person lacks all capacity to
make any decisions at all. For example a person with a learning
disability may lack the capacity to make some major decisions, for
instance where they should live, but this does not necessarily mean
that they cannot decide what to eat, wear and do each day.
It is very important that you remember at all times that lack of
capacity may not be a permanent condition. Assessments of
capacity should be time and decision specific (see part 6 of this
booklet which gives details of assessing capacity).
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3. What is the Mental Capacity Act and
what changes will it introduce?
What is the Mental Capacity Act?
The MCA will apply in England and Wales to everyone who
works in health and social care and is involved in the care,
treatment or support of people over 16 years of age who may
lack capacity to make decisions for themselves.
It is based on existing best practice and creates a single,
coherent framework for dealing with mental capacity issues and
an improved system for settling disputes, dealing with personal
welfare issues and the property and affairs of people who lack
capacity.
It puts the individual who lacks capacity at the heart of decision
making and places a strong emphasis on supporting and
enabling the individual to make his/her own decisions. If they
are unable to do this it emphasises that they should be involved
in the decision making process as far as possible.
It will introduce important new safeguards for people who lack
capacity and the people who work with, support or care for them.
It is underpinned by five key principles which must inform
everything you do when providing care or treatment for a
person who lacks capacity (see part 4 of this booklet).
There will be a Code of Practice which will explain how the
MCA will work on a day-to-day basis.
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The Code of Practice for the MCA
The Code will explain how the MCA will work on a day-to-day
basis and will provide guidance to all those working with people
who may lack capacity. The Code explains in more detail what the
key features of the legislation are and some of the practical steps
that people using and interpreting the new law will need to take
into consideration. If you work with people who lack capacity and
you are a professional and/or you are paid for the work you do
then you will have a legal duty to have regard to the Code.
Having regard involves paying attention to the Code and being
able to show that you are familiar with the guidance in it and if
you don’t follow the Code you should be able to give convincing
reasons why not.
When it is published the Code of Practice will be available online at:
www.dca.gov.uk/legal-policy/mental-capacity/publications.htm
and you can order hard copies from the TSO by calling
0870 600 5522 or emailing customerservices@tso.co.uk
What changes will the MCA introduce?
There must always be the presumption that people you provide
care or treatment for have capacity to make decisions for
themselves.
A single clear test for assessing whether a person lacks
capacity to make a decision (see part 6).
A check list of key factors which provides a starting point to
help you determine what is in the ‘best interests’ of a person
lacking capacity (part 7).
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Several ways that people can influence what happens to them
if they are unable to make particular decisions in the future,
including advance decisions to refuse medical treatment,
statements of wishes and feelings, and creating a Lasting
Power of Attorney (LPA) (part 10).
Clarification about the actions you can take if someone does lack
capacity, and the legal safeguards that will govern this (part 9).
An obligation for you to consult, where practical and appropriate,
people who are involved in caring for the person who lacks
capacity and anyone interested in their welfare (for example
family members, friends, partners and carers) about decisions
affecting that person (part 7). If there is an attorney under an LPA
(part 10), a deputy appointed by the Court (part 12) or named
person, you will also have an obligation to consult them.
A new advocacy service called the Independent Mental Capacity
Advocate (IMCA) service which will start working in April 2007 in
England and in October 2007 in Wales. An IMCA will only have
to be involved in specific circumstances where there is no one
appropriate who can be consulted (part 8).
A new criminal offence of ill-treatment or wilful neglect of people
who lack capacity which will come into force in April 2007 (part 9).
New safeguards for undertaking research involving people who
lack capacity (part 13).
A new Court of Protection and a new public official (the Public
Guardian) who will be supported by the Office of the Public
Guardian (OPG) (part 12).
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When does the Mental Capacity Act come into force?
There are two distinct phases: April and October 2007.
April 2007
The new Independent Mental Capacity Advocate service
(IMCAs) will become operational in England only (see part 7).
The new criminal offence of ill-treatment or wilful neglect in
England and Wales will come into force (see part 14).
Sections 1-4 of the Act (the principles, assessing capacity
and determining best interests - see parts 4-6) which are
essential to how IMCAs operate will also come into force but
only in situations where an IMCA could be involved, and for the
purposes of the criminal offence. Sections 1-4 of the Act will
not apply in any other situations until October 2007.
The Code of Practice for the Act will be published and should
be followed by those who must have regard to it in situations
where an IMCA could be involved.
October 2007
All other parts of the Act come into force including IMCAs in
Wales.
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4. The five principles of the MCA
The MCA has five key principles which emphasise the fundamental
concepts and core values of the MCA. You must always bear these
in mind when you are working with, or providing care or treatment
for people who lack capacity.
The five principles are:
1 Every adult has the right to make his or her own decisions and
must be assumed to have capacity to do so unless it is proved
otherwise. This means that you cannot assume that someone
cannot make a decision for themselves just because they have
a particular medical condition or disability.
2 People must be supported as much as possible to make a
decision before anyone concludes that they cannot make their
own decision. This means that you should make every effort
to encourage and support the person to make the decision for
themselves. See part 5 of this booklet for more information on
how to do this. If a lack of capacity is established, it is still important
that you involve the person as far as possible in making decisions.
3 People have the right to make what others might regard an unwise
or eccentric decision. Everyone has their own values, beliefs and
preferences which may not be the same as those of other people.
You cannot treat them as lacking capacity for that reason.
4 Anything done for or on behalf of a person who lacks mental
capacity must be done in their best interests. See part 7 of this
booklet for more information on how to go about deciding what
is in the best interests of the person you are providing care or
treatment for.
5 Anything done for, or on behalf of, people without capacity
should be the least restrictive of their basic rights and freedoms.
This means that when you do anything to or for a person who
lacks capacity you must choose the option that is in their best
interests and you must consider whether you could do this in a
way that interferes less with their rights and freedom of action.
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5. Helping people to make decisions for
themselves
When a person in your care needs to make a decision you must
start from the assumption that the person has capacity to make the
decision in question (principle 1). You should make every effort to
encourage and support the person to make the decision themselves
(principle 2) and you will have to consider a number of factors to
assist in the decision making.
These could include:
Does the person have all the relevant information needed to
make the decision? If there is a choice, has information been
given on the alternatives?
Could the information be explained or presented in a way
that is easier for the person to understand? Help should be
given to communicate information wherever necessary. For
example, a person with a learning disability might find it easier
to communicate using pictures, photographs, videos, tapes or
sign language.
Are there particular times of the day when a person’s
understanding is better or is there a particular place where they
feel more at ease and able to make a decision? For example,
if a person becomes drowsy soon after they have taken their
medication this would not be a good time for them to make a
decision.
Can anyone else help or support the person to understand
information or make a choice? For example, a relative, friend or
advocate.
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You must remember that if a person makes a decision which you
think is eccentric or unwise, this does not necessarily mean that the
person lacks capacity to make the decision (Principle 3).
Example:
Michael had a stroke 3 years ago. He has been unwell and is now
in hospital. The doctor wishes to undertake further tests involving
a general anaesthetic.
The doctor discusses the procedure with Michael who becomes
anxious and repeatedly asks why he needs an anaesthetic.
This is not an emergency but the doctor feels that Michael may
lack capacity to consent as he does not seem to be able to
understand and remember what the doctor is saying. So the
doctor consults Michael’s wife who explains that ever since the
stroke Michael gets anxious when he is away from home and the
people and things he is familiar with. She tells the doctor that it
would help if she was there when the doctor explained the tests
to Michael as she can reassure him and explain things to him.
The doctor discusses the tests again with Michael when his wife is
present. Michael is at first reluctant to agree to the anaesthetic but
his wife explains she will be there when he wakes up and that he
will not have to stay in the hospital overnight. With the help of his
wife, Michael understands what the doctor is saying and is able
to make a decision and give his consent to the tests.
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Example:
As a result of a car accident a few years ago Margie is paralysed
and also has brain damage.
Margie has received significant compensation for her injuries.
She wants to use part of the money on cosmetic surgery.
Her family agree that she understands the financial implications
of spending a portion of the compensation on cosmetic surgery.
However, they are concerned that she does not understand the
risks that the procedure will involve.
The cosmetic surgeon has had several consultations with Margie.
She has made it clear that she understands the implications both
physically and financially and is determined to have the surgery.
She thinks it will increase her self esteem and confidence and
that these benefits outweigh the potential risks.
The surgeon also asks a colleague to discuss the implications of
the surgery with Margie. His colleague concludes that Margie has
the capacity to make the decision and makes a note in the health
records.
When there is reason to believe that a person lacks capacity to
make a decision you will be expected to consider the following:
Has everything been done to help and support the person to
make a decision?
Does this decision need to be made without delay?
If not, is it possible to wait until the person does have the
capacity to make the decision for himself or herself? For
example, a person may be drowsy or disorientated because of
the medication they are taking.
If the person’s ability to make a decision still seems questionable
then you will need to move onto the next phase of assessing
capacity as set out in part 6 of this booklet.
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6. Assessing capacity
You should always start from the assumption that the person has
capacity to make the decision in question (principle 1). Under the
MCA, you will be required to make an assessment of capacity
before carrying out any care or treatment. Of course the more
serious the decision, the more formal the assessment of capacity
will need to be. Whether and how such assessments are recorded
may vary according to the seriousness of the decision made.
You should always bear in mind that just because someone lacks
capacity to make a decision on one occasion that does not mean
that they will never have capacity to make a decision in the future,
or about a different matter.
Example:
Ridwaan has dementia and lives in a residential care home.
Like many people with dementia his mental capacity fluctuates.
On most days he can make all the basic decisions about daily
living such as washing, eating and drinking etc.
However, sometimes he lacks capacity to make the most basic of
decisions, such as what to eat.
On these occasions, a possible entry in the care records could
be: “At lunch time today, Ridwaan lacked capacity to decide what
to eat, so a decision about this was made in his best interests.
At each mealtime we will assess his capacity to decide what he
wants to eat. If Ridwaan has capacity to make this decision at
any point he will decide what to eat”.
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When should capacity be assessed?
The MCA makes clear that any assessment of a person’s capacity
must be ‘decision-specific’, this means that:
the assessment of capacity must be about the particular
decision that has to be made at a particular time and is not
about a range of decisions
if someone cannot make complex decisions this does not
mean that they cannot make simple decisions. For example, it
is possible that someone with learning disabilities could make
decisions about what to wear or eat but not about whether or
not they need to live in a care home
you cannot decide that someone lacks capacity based upon
their age, appearance, condition or behaviour alone.
The test to assess capacity
You will not normally make an assessment of capacity without
involving family, friends and/or carers or an Independent Mental
Capacity Advocate (IMCA) if one has been appointed (see part 8).
This will depend on the situation and the decision that needs to be
made.
You should never express an opinion, without first conducting a
proper assessment of the person’s capacity to make a decision.
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The functional test of capacity
In order to decide whether an individual has the mental capacity to
make a particular decision, you must first decide whether there is
an impairment of, or disturbance in, the functioning of the person’s
mind or brain (it does not matter if this is permanent or temporary).
If so, the second question you must answer is does the impairment or
disturbance make the person unable to make the particular decision?
The person will be unable to make the particular decision if after all
appropriate help and support to make the decision has been given
to them (principle 2) they cannot:
1 understand the information relevant to that decision, including
understanding the likely consequences of making, or not
making the decision
2 retain that information
3 use or weigh that information as part of the process of making
the decision
4 communicate their decision (whether by talking, using sign
language or any other means).
Every effort should be made to find ways of communicating with
someone before deciding that they lack the capacity to make a
decision based solely on their inability to communicate. Very few
people will lack capacity on this ground alone. Those who do might
include people who are unconscious or in a coma or who suffer from
a very rare neurological condition known as ‘locked-in syndrome’. In
many other cases such simple actions as blinking or squeezing a hand
may be enough to communicate a decision. The input of professionals
with specialised skills in verbal and non-verbal communication is likely
to be required when making decisions in this area.
An assessment must be made on the balance of probabilities - is it
more likely than not that the person lacks capacity? You should be
able to show in your records why you have come to the conclusion
that the person lacks capacity to make the particular decision.
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Challenging the result of an assessment of capacity
Sometimes the assessment that you or a colleague has made will
be challenged.
This may be by the person who has been assessed or by someone
acting for them, for instance a relative or an advocate.
When an assessment is challenged, the person could seek
resolution in the following ways:
The first step will always be to raise the matter with the person
who did the assessment. The assessor’s records will be an
important part of this process.
A second opinion may be useful in some cases.
Involve an advocate (not an IMCA) who is independent of all
parties involved.
Local complaints procedures.
Mediation.
Case Conference.
If a resolution is not possible they can apply to the Court of
Protection (see part 12) to seek a ruling.
For more detailed guidance on channels for resolving disagreements
you should refer to the Code of Practice.
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7. Best Interests
If a person has been assessed as lacking capacity then any action
taken, or any decision made for, or on behalf of that person, must
be made in his or her best interests (principle 4).
The person who has to make the decision is known as the
‘decision-maker’ and normally will be the carer responsible for the
day to day care, or a professional such as a doctor, nurse or social
worker where decisions about treatment, care arrangements or
accommodation have to be made.
What is ‘best interests’?
The law gives a checklist of key factors which you must consider
when working out what is in the best interests of a person who
lacks capacity. This list is not exhaustive and you should refer to the
Code of Practice for more details.
It is important not to make assumptions about someone’s best
interests merely on the basis of the person’s age or appearance,
condition or any aspect of their behaviour.
The decision-maker must consider all the relevant
circumstances relating to the decision in question.
The decision-maker must consider whether the person is likely
to regain capacity (e.g. after receiving medical treatment). If so,
can the decision or act wait until then?
The decision-maker must involve the person as fully as possible
in the decision that is being made on their behalf.
If the decision concerns the provision or withdrawal of life-
sustaining treatment the decision-maker must not be motivated
by a desire to bring about the person’s death.
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The decision maker must in particular consider:
the person’s past and present wishes and feelings
(in particular if they have been written down)
any beliefs and values (e.g. religious, cultural or moral) that
would be likely to influence the decision in question and any
other relevant factors.
As far as possible the decision-maker must consult other
people if it is appropriate to do so and take into account their
views as to what would be in the best interests of the person
lacking capacity, especially:
anyone previously named by the person lacking capacity as
someone to be consulted
carers, close relatives or close friends or anyone else
interested in the person’s welfare
any attorney appointed under a Lasting Power of Attorney
any deputy appointed by the Court of Protection to make
decisions for the person.
If you are making the decision under new law you must take the
above steps, amongst others and weigh up the above factors in
order to determine what is in the person’s best interests. For more
information you should refer to the Code of Practice.
For decisions about serious medical treatment or certain changes of
accommodation and where there is no one who fits into any of the
above categories, you should consider whether you need to involve
an Independent Mental Capacity Advocate (IMCA) (see part 8).
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What do I do if there is a dispute about best interests?
Family and friends will not always agree about what is in the best
interests of an individual.
If you are the decision-maker you will need to clearly demonstrate
in your record keeping that you have made a decision based on all
available evidence and taken into account all the conflicting views.
If there is a dispute, the following things might assist you in
determining what is in the person’s best interests:
Involve an advocate who is independent of all the parties
involved.
Get a second opinion.
Hold a formal or informal case conference.
Go to mediation.
An application could be made to the Court of Protection for a
ruling.
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8. The Independent Mental Capacity Advocate
(IMCA) service
In most situations, people who lack capacity will have a network of
support from family members or friends who take an interest in their
welfare, or from a deputy (see part 12) or an attorney appointed
under an Lasting Power of Attorney (see part 10). However, some
people who lack capacity may have no one to support them (other
than paid staff) with major, potentially life-changing decisions so
the Act creates an Independent Mental Capacity Advocate (IMCA)
who will represent and support them. An IMCA is a specific type of
advocate that will have to be involved if there is no-one appropriate
who can be consulted. An IMCA will not be the decision-maker,
but the decision-maker will have a duty to take into account the
information given by the IMCA.
The Independent Mental Capacity Advocate (IMCA) service which
will be available in England from April 2007 and in Wales from
October 2007. The service will be provided in each local authority
area in England and in each local health board area in Wales.
An IMCA will only be involved if:
the decision is about serious medical treatment provided by the
NHS
it is proposed that the person be moved into long-term care of
more than 28 days in a hospital or 8 weeks in a care home
a long-term move (8 weeks or more) to different
accommodation is being considered, for example, to a different
hospital or care home
in England, local authorities and the NHS have been given powers
to extend the IMCA service to specific situations if they are
satisfied that an IMCA would provide particular benefit. These are:
care reviews about accommodation or changes to
accommodation, and
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adult protection cases (even if the person who lacks
capacity has family and/or friends)
in Wales, the National Assebly for Wales will announce later in
2007 if local health boards and local authorities can also extend
the IMCA service to these situations.
However, an IMCA does not have to be involved if the treatment
is to be given under the Mental Health Act 1983, or the person
concerned is required under the Mental Health Act to go into the
hospital or home in question.
The duties of an IMCA are to:
support the person who lacks capacity and represent their
views and interests to the decision-maker
obtain and evaluate information - an IMCA can talk to the
patient in private and examine, and where appropriate, take
copies of health and social care records such as clinical
records, care plans or social care assessment documents
as far as possible, ascertain the person’s wishes and feelings,
beliefs and values
ascertain alternative courses of action
obtain a further medical opinion, if necessary
prepare a report for the person who instructed them.
If an IMCA disagrees with the decision made, they can also
challenge the decision-maker.
If you are the decision-maker in the NHS or local authority (in England)
or local health board (in Wales) it will be your duty to instruct the IMCA
before making the decision (apart from in emergency situations). Local
IMCA providers and commissioners will ensure that the necessary
contact are widely circulated so that decision-makers will be able to
contact IMCA provider(s) speedily when necessary.
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Example:
Jamil is an adult with severe learning disabilities and both his
parents have recently died.
Jamil needs heart bypass surgery. This is the first time since
his parents died that a decision needs to be made in relation to
Jamil and he has no other family and friends or anyone else to
represent or support him.
Although he is able to make decisions about his day to day life he
lacks capacity to consent to the operation.
An IMCA will therefore be instructed to find out as far as possible
Jamil’s views and represent them to the doctor who will then
decide whether or not it is in Jamil’s best interests to go ahead
with the operation.
If you need to instruct an IMCA you can get more detailed guidance
and information on the IMCA service from:
The Code of Practice
The Department of Health IMCA web pages, including
information on the IMCA pilots, IMCA Commissioning
Guidance, information on IMCA training materials and also
guidance on interpreting the regulations extending the IMCA
service to accommodation reviews and adult protection cases:
www.dh.gov.uk/imca
IMCA regulations for England which detail the role and
functions of the IMCA:
www.opsi.gov.uk/si/si2006/20061832.htm
www.opsi.gov.uk/si/si2006/20062883.htm
Draft IMCA regulations for Wales which detail the role and
functions of the IMCA: email sarah.austin@wales.gsi.gov.uk
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9. Providing care or treatment to people who
lack capacity
How will the MCA protect you if you work in health
and social care?
The MCA provides legal protection from liability for carrying out
certain actions in connection with the care and treatment of people
who lack capacity to consent, provided that:
you have observed the principles of the MCA
you have carried out an assessment of capacity and reasonably
believe that the person lacks capacity in relation to the matter in
question (part 6)
you reasonably believe the action you have taken is in the best
interests of the person (part 7).
Some decisions that you make could result in major life changes or
have significant consequences for the person concerned and these
will need particularly careful consideration. For example, a change
of residence, perhaps into a care home or nursing home; or major
decisions about healthcare and medical treatment.
Information for people who work in social care
Providing you have complied with the MCA in assessing a person’s
capacity and have acted in the person’s best interests, you will be
able to carry out many aspects of a person’s personal care without
their consent and attract protection from liability in doing so.
Actions concerning a person’s care that may attract protection from
liability may include:
helping with washing, dressing or attending to personal hygiene
help with eating and drinking
helping people to walk and assistance with transport
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help with arranging household services such as power supplies,
housework, repairs or maintenance
acts performed in relation to domiciliary care or other services
acts performed in relation to other community care services
(such as day care, residential accommodation or nursing care)
acts associated with a change of residence
acts associated with the person’s safety
acts associated with adult protection procedures.
As such acts may be disputed it will be in your interests to keep a
record of the steps taken and the factors considered in doing so.
How detailed that will be may vary according to the seriousness of
the action.
In emergencies, it will often be in the person’s best interests for you
to provide urgent care without delay.
Information for people who work in health care
Providing you have complied with the MCA in assessing a person’s
capacity and have acted in the person’s best interests you will be
able to diagnose and treat patients who do not have the capacity to
give their consent. For example:
diagnostic examinations and tests
assessments
medical and dental treatment
surgical procedures
admission to hospital for assessment or treatment (except for
people who are liable to be detained under the Mental Health
Act 1983. See part 14 for information on the interface between
the MCA and the Mental Health Act 1983)
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nursing care
emergency procedures (such as cardiopulmonary resuscitation).
It will be important to keep a full record of what has happened. The
protection from liability will only be available if you can demonstrate
that you have assessed capacity (see part 6), reasonably believe it
to be lacking and then acted in what you reasonably believe to be in
the person’s best interests (see part 7).
In emergencies, it will often be in a person’s best interests for you to
provide urgent treatment without delay.
As is the situation now, there are some decisions about medical
treatment that are so serious that each case should go to the court.
For more detailed information you should refer to the Code of
Practice.
The Dept of Health’s consent guidance and model consent forms
will be updated in light of the Mental Capacity Act. More detailed
information on this will be available at: www.dh.gov.uk/consent
The use of restraint
Issues relating to restraint may be of particular concern to you.
Restraint covers a wide range of actions, including the use, or
threat, of force to do something that the person concerned resists,
for example by using cot sides or confining people’s movements
or a restriction of his or her liberty of movement (falling short of a
restriction that would deprive them of their liberty).
The MCA identifies two additional conditions which must be satisfied
in order for protection from liability for restraint to be available:
You must reasonably believe that it is necessary restrain the
person who lacks capacity in order to prevent them coming to
harm.
Any restraint must be reasonable and in proportion to the
potential harm.
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Using excessive restraint could leave you liable to a range of
civil and criminal penalties. For instance, it may be necessary to
accompany someone when going out because they cannot cross
roads safely, but it may be unreasonable for you to stop them from
going outdoors all together.
The Bournewood Safeguards
Bournewood is the name of a hospital where a man with autism
who did not have capacity to consent to being in hospital was
detained. His detention was challenged and the European Court
of Human Rights found that he had been deprived of his liberty
unlawfully.
In response to the Bournewood Case the Government plans to
amend the MCA to introduce the ‘Bournewood’ safeguards and
procedures for people who lack the capacity to makedecisions
about their care, and are deprived of their liberty, in their own best
interests. This will apply to people in hospitals and care homes.
For more information you should read the Department of Health’s
briefing sheet on the proposed Bournewood provisions. You can
find it at: www.dh.gov.uk/assetRoot/04/13/68/45/04136845.pdf
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Protecting people who lack capacity from ill-treatment
or wilful neglect
The MCA will introduce a new criminal offence of ill treatment or
wilful neglect of a person who lacks capacity which will come into
force in April 2007. This is intended to deter people from abusing,
ill-treating or neglecting people who lack capacity. If convicted,
people can be imprisoned or fined.
The offence could potentially cover restraining someone
unreasonably against their will, failure to provide adequate care,
and also the more commonly understood types of abuse such as
financial, sexual, physical and psychological abuse.
This offence will apply to a person who:
has the care of a person who lacks capacity
is an attorney appointed under a LPA or EPA
is a deputy appointed for the person by the court.
You will need to have full knowledge of this as you carry out your
duties. In keeping with good practice in health and social care, you
should keep records showing that you have followed the Code of
Practice.
Whilst the majority of people who are involved in the care of
vulnerable people are entirely trustworthy, everyone should be alert
to signs of abuse and take swift action to prevent or stop it. If you
think someone is being abused or ill-treated you should contact the
police or your Social Services Department’s adult services who will
deal with it under local adult protection procedures.
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10. Providing care or treatment for people who
have planned ahead
The MCA will have far reaching effects for people who work in
health and social care because it extends the ways in which people
using services can plan ahead for the time when they may lack
capacity. These are Lasting Powers of Attorney (LPAs), advance
decisions to refuse treatment, and written statements of wishes and
feelings.
If you are providing care or treatment for someone who lacks
capacity these may be very helpful in deciding what to do. If you
are working with people who have capacity, or who have fluctuating
capacity (such as people with mental health problems) it may be
helpful for you to explain to them these ways of planning ahead for
a time when they may lack capacity.
Providing care or treatment for people who have planned ahead
is a very complex area and it is advisable to refer to the Code of
Practice for more detailed guidance.
Lasting Powers of Attorney (LPAs)
The MCA introduces a new form of power of attorney which will
allow people over the age of 18 to formally appoint one or more
people to look after their health, welfare and/or financial decisions,
if at some time in the future they lack the capacity to make these
decisions for themselves. The person making an LPA will be called
the donor. The power which is given to someone else is called a
Lasting Power of Attorney (LPA) and the person(s) appointed will be
known as an attorney(s). The LPA will give the attorney authority to
make decisions on behalf of the donor and the attorney will have a
duty to act or make decisions in the best interests (principle 4) of
the person who has made the LPA.
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There will be two different types of LPA:
1 A personal welfare LPA is for decisions about both health and
personal welfare
2 A property and affairs LPA is for decision about financial
matters
Important facts about LPAs
The introduction of the LPA for property and affairs will mean
that no more Enduring Powers of Attorney (EPA) can be made
from October 2007, but the MCA makes transitional provisions
for existing EPAs to continue whether they are registered or not.
This means that pre-existing EPAs can continue to be used post
October 2007 (whether registered or not) and can continue to
be registered post October 2007.
When a person makes an LPA they must have the capacity to
understand the importance of the document and the power
they are giving to another person.
Before an LPA can be used it must be registered with the Office
of the Public Guardian (part 12). This is vital, without registration
an LPA cannot be used at all.
An LPA for property and affairs can be used when the donor still
has capacity unless the donor specifies otherwise.
A personal welfare attorney will have no power to consent to, or
refuse treatment, at any time or about any matter when the person
has the capacity to make the decision for himself or herself.
If the person in your care lacks capacity and has created a
personal welfare LPA, the attorney will be the decision-maker
on all matters relating to the person’s care and treatment.
Unless the LPA specifies limits to the attorney’s authority
the attorney will have the authority to make personal welfare
decisions and consent to or refuse treatment (except life-
sustaining treatment) on the donor’s behalf. The attorney must
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make these decisions in the best interests of the person lacking
capacity (principle 4) and if there is a dispute that cannot be
resolved, e.g. between the attorney and a doctor, it may have to
be referred to the Court of Protection.
If the decision is about life-sustaining treatment, the attorney
will only have the authority to make the decision if the LPA
specifies this.
If you are directly involved in the care or treatment of a person
who lacks capacity, you should not agree to act as their
attorney other than in exceptional circumstances, for instance,
if you are the only close relative of the person.
It is important to read the LPA if it is available to understand the
extent of the attorney’s power.
Example:
Martin has recently been diagnosed as being in the very early
stages of Alzheimer’s disease.
He wants to make sure that if he lacks capacity in the future his
personal values and preferences are taken into account when
a decision is made on his behalf. He decides to appoint his
daughter as a welfare attorney to make any personal welfare
decisions that he loses capacity to make herself. He talks through
things which are important to him such as wanting to stay near
his friends, and to be able to go into a care home that allows
pets. His daughter then registers the LPA.
If in the future Martin lacks capacity to decide where he should
live, his daughter will have the authority to make this decision as
his personal welfare attorney. She will be able to take account
of the things that her father has stated when considering what
would be in his best interests.
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Advance decisions to refuse treatment
Sometimes people have clear views about what types of treatment
they don’t want to have and would not consent to. An advance
decision allows them to express these views clearly, before they
lose capacity. Advance decisions, also called advance directives
or ‘living wills’ can currently be made under common law and
the Mental Capacity Act puts them on a statutory footing. It also
explains what is required in law for an advance decision to be valid
and applicable and introduces new safeguards.
An advance decision is where a person aged 18 or over may set
out what particular types of treatment they would not want to have
and in what circumstances, should they lack the capacity to refuse
consent to this treatment for themselves in the future. It can be
about any treatment even if it may result in the person’s death and
if it is valid and applicable it must be followed as it is legally binding
and has the same force as when a person with capacity refuses
treatment (see below for the requirements for advance decisions).
An advance decision does not need to be in writing, except for
decisions relating to life-sustaining treatment (see below) but it is
helpful if it is.
What are the requirements for advance decisions?
The MCA introduces a number of rules people must follow when
making an advance decision. If you are making a decision about
treatment for someone who is unable to consent to it, you must be
satisfied that the advance decision exists, is valid and applicable to
the particular treatment in question.
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The following list gives a very brief summary of some of the main
requirements for advance decisions (if you are involved in such a
decision you should consult the Code of Practice):
It must be valid. The person must not have withdrawn it, or
overridden it by making an LPA that relates to the treatment
in the advance decision (see part 10), or acted in a way that is
clearly inconsistent with the advance decision.
It must be applicable to the treatment in question. It should
clearly refer to the treatment in question (detailed medical
terms do not have to be used) and it should explain which
circumstances the refusal refers to. If there have been changes
in circumstances which there are reasonable grounds for
believing would have affected a person’s advance decision
when they made it, then it may not be applicable.
You should also note that:
where people are detained under the Mental Health Act 1983
and can therefore be treated for mental disorder without their
consent, they can also be given such treatment despite having
an advance decision to refuse the treatment
people cannot make an advance decision to ask for medical
treatment - they can only say what types of treatment they
would refuse
people cannot make an advance decision to ask for their life to
be ended.
If you are satisfied that the decision is both valid and applicable
then you will have to abide by that decision.
Advance decisions to refuse life-sustaining treatment
The MCA sets out additional formalities for advance decisions that
refuse life-sustaining treatment.
An advance decision to refuse life-sustaining treatment must fulfil
the following additional requirements:
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It must be in writing, which includes being written on the
person’s behalf or recorded in their medical notes.
It must be signed by the maker in the presence of a witness
who must also sign the document. It can also be signed on the
maker’s behalf at their direction if they are unable to sign it for
themselves.
It must be verified by a specific statement made by the maker,
either included in the document or a separate statement, that
says that the advance decision is to apply to the specified
treatment even if life is at risk. If there is a separate statement
this must also be signed and witnessed.
Example:
Ike has witnessed a friend die of cancer. He decides that he would
not wish to receive chemotherapy or radiotherapy if he became
seriously ill and was close to dying. Ike is concerned that if he is
unable to make a decision, the doctors may make it for him.
So he makes an advance decision stating that in the future if
he becomes ill he does not want to receive chemotherapy or
radiotherapy. His advance decision includes a written statement
confirming that he does not want chemotherapy or radiotherapy
even if his life is at risk. Ike signs the advance decision and his
close friend witnesses the signature.
The advance decision must be followed if and when it becomes
relevant and the doctor is satisfied that it is valid and applicable.
Providing care or treatment for people who have made advance
decisions is a complex area and it is advisable to refer to the Code
of Practice for more detailed guidance.
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Conscientious objection
You will not have to act on an advance decision if you object to it on
religious or moral grounds.
You must make this known as soon as possible and arrangements
must be made for the management of the patient’s care to be
transferred to another health professional.
Liability of people who work in health and social care
You will not incur liability for providing treatment in a patient’s best
interests if, having taken reasonable steps, you do not know or are
not satisfied that a valid and applicable advance decision exists. If
you are satisfied that an advance decision exists which is valid and
applicable, then not to abide by it could lead to a legal claim for
damages or a criminal prosecution for assault.
If you reasonably believe that there is a valid and applicable
advance decision then you will not be held liable for the
consequences of abiding by it and not providing treatment. You
should clearly record how you came to your conclusions.
Disputes and disagreements about advance decisions
You will have to form a view about whether or not an advance
decision is valid and applicable and you should refer to the Code
of Practice for more detailed guidance particularly if there is a
disagreement.
If there is a dispute or difficulty, then you should consider mediation
or the matter could be referred to the Court of Protection by you or
a relative, carer or a close friend of the patient.
Dealing with advance decisions that are made before
October 2007
People can already make advance decisions sometimes known as
a ‘living will’. If any of the people you provide care or treatment for
have already got an advance decision, you should suggest that
they check that it meets the new rules that the MCA sets out to
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ensure that it is valid and applicable when the MCA comes into
force. If the person has already lost capacity then the advance
decision may still be binding. More detailed guidance on this will be
available at: www.dh.gov.uk/consent
Statements of wishes and feelings and beliefs and values
Sometimes people will want be able to write down or tell people about
their wishes and preferences about future treatment and care and
explain their feelings or values that govern how they make decisions.
These statements can be about anything, including personal
preferences such as having a shower rather than a bath, or wanting
to sleep with the light on. Such statements can request certain
types of treatment, which you must consider carefully, in particular if
they have been written down.
Example:
Khalid is vegetarian and has a degenerative condition. He wants
to make sure that if he lacks mental capacity and needs people
to help him with daily tasks they take into account his personal
beliefs. He therefore writes down a statement explaining that
he only wishes to receive vegetarian food. Khalid asks for the
statement to be filed with his health records so that in the future,
if he can no longer make and communicate his own decisions, he
receives food in line with his wishes.
When you are assessing what treatment or care is in a person’s
best interests you will have to take these statements into
account. However, your final decision must always be based
on your assessment of what is in the person’s best interests
and your professional judgement of what is clinically necessary
or appropriate. If this is different to what they have said in their
statement of wishes and feelings you should keep a record of this
and be prepare to justify your decision if challenged.
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11. Confidentiality and record keeping
Confidentiality
You are required to maintain confidentiality with regard to
information about the people in your care. Personal information
should not be disclosed unless:
the person agrees
there is a legal obligation to do so
there is an overriding public interest.
Where a person lacks capacity the Mental Capacity Act test of ‘best
interests’ may also justify disclosure (see part 7).
An assessment of capacity may require the sharing of information
amongst health and social care workers. If a person lacks capacity
to consent to disclosure then you must work out whether it would in
their best interests (see part 7) to disclose the information. Only as
much information as necessary should be divulged.
Where an attorney under a personal welfare LPA has been
appointed they will determine if information can be disclosed
and you must normally consult with them before sharing any
information. Where it is not possible to consult, for example,
because urgent treatment is necessary, you must act in the patient’s
best interests and advise the attorney of any action taken as soon
as practicable.
Disclosure of, and access to, information can be complex. The
Information Commissioner has issued guidance on the Data
Protection Act 1998 and the Mental Capacity Act does not
change or substitute this. Also, professionals and organisations
have their own codes of conduct, policies and procedures about
confidentiality. These are supported by experts such as Information/
Data Protection Officers in Social Services and Caldicott Guardians
in NHS organisations.
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For more detailed guidance and sources of information on
confidentiality, you should go to:
Guidance on the Data Protection Act 1998
www.ico.gov.uk
NHS Code of Practice on confidentiality and information on
Caldicott Guardians
www.dh.gov.uk (search under ‘patient confidentiality’)
You should also refer to any codes of conduct or procedures on
confidentiality that your workplace has.
Record keeping
As a person who works in health or social care you will need to
record accurately the decisions you make about the assessment of
mental capacity, and the determination of best interests.
The decisions may be recorded in the:
Care plan
Nursing records
Medical records
Social work records
Other health and social care records
Other notes and records such as those kept by social workers,
therapists or care assistants.
You should remember that the records you keep might in the future
be referred to if there is a dispute or as part of legal proceedings.
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12. New public bodies and services created by
the Mental Capacity Act 2005
The MCA creates a new court and a new public official to protect
people who lack capacity and to supervise and support those
making decisions on their behalf.
Court of Protection and deputies
The existing Court of Protection will be replaced by a new Court
of Protection which will be a specialist court and will deal with all
issues related to the MCA. It will deal with decisions concerning
both the property and affairs and the health and welfare of people
who lack capacity. It will be particularly important in resolving
complex or disputed cases, for example, about whether someone
lacks capacity or what is in their best interests. In specific
situations, the Court of Protection will also be able to consider
cases relating to children who are under 16, for example when
longer term decisions need to be made about their financial affairs.
The Court of Protection will have the power to:
make declarations about whether or not a person has capacity
to make a particular decision
make decisions on serious issues about healthcare and
treatment
make decisions about the property and financial affairs of a
person who lacks capacity
appoint deputies to have ongoing authority to make decisions
make decisions in relation to Lasting Powers of Attorney (LPAs)
and Enduring Powers of Attorney (EPAs).
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The court will be able to appoint a deputy if necessary, for example,
because a person has an ongoing lack of capacity. The court will
tailor the powers given to a deputy based on the circumstances of
the case.
Deputies will replace the current system of court appointed
receivers to deal with property and affairs of someone who lacks
capacity, but in future deputies could also be appointed to deal with
personal welfare decisions. Deputies will have to pay attention to
the Code (see part 3) and will have to act in the best interests of the
person who lacks capacity (see part 7).
People who work in health and social care and are directly involved in
the care or treatment of a person who lacks capacity, will not usually
be appointed as deputies because of the possible conflict of interests.
The Public Guardian
The role of the Public Guardian is intended to protect people who
lack capacity from abuse. The Public Guardian will be supported by
the new Office of the Public Guardian (OPG).
Some of the tasks of the Public Guardian will include:
maintaining a register of LPAs and EPAs
maintaining a register of orders appointing deputies
supervising deputies appointed by the Court
directing Court of Protection Visitors to visit people lacking
capacity
receiving reports from attorneys acting under LPAs and from
deputies
providing reports to the court as requested
dealing with representations (including complaints) about the
way in which attorneys or deputies exercise their powers
providing general information about the MCA.
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13. Research involving people who may lack
capacity
The MCA will set out a clear legal framework for many types of
research involving people who lack capacity to consent to taking
part in such research. As someone who provides care or treatment
for a person who lacks capacity you may be asked to be involved if
the person is taking part in such research.
It is important that research is able to involve people who lack
capacity, to provide knowledge about the causes of incapacity and
about the diagnosis, treatment, care and needs of people who lack
capacity. The Act covers a wide range of research including clinical,
health and social care research but not clinical trials, which are
covered by separate legislation.
Research covered by the Act could include:
developing new and more effective ways of treating a condition
improving the quality of health and social care services
discovering the cause of a debilitating illness or learning disability
preventing harm, exclusion or disadvantage on the part of
people who lack capacity
checking to see what type of intervention works best in a
particular situation.
The MCA will introduce a number of safeguards to protect people
taking part in such research. These include:
A family member or unpaid carers must be consulted about any
proposal and agree that the person can be part of the research.
If such a person cannot be identified, then the researcher must
identify a person who is independent of the research project
to provide advice on the participation of the person who lacks
capacity in the research.
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If the person without capacity shows any sign that they are not
happy to be involved in the research then the research will not
be allowed to continue.
All plans for research will be checked by a recognised
independent Research Ethics Committee.
The committee will need to agree that the research is necessary,
safe and appropriate and cannot be done as effectively using
people who have mental capacity.
The committee will also have to approve plans to deal with
people who consented to join a long-term research project but
lost capacity before the end of the project.
The person’s past or present wishes and feelings and values
are most important in deciding whether they should take part in
research or not. Someone involved in a research project may ask
you if you know what the person’s feelings are. Part of a research
project may be carried out when you are providing care or treatment
for a person and you may be asked to let the researchers know if
the person seems upset about any aspect of it.
Anyone setting up or carrying out such research will need to make
sure the research complies with the provisions set out in the Act
and will need to follow the guidance given in the Code of Practice.
Further sources of information and guidance:
For more detailed guidance on research involving people who
lack capacity you should read the Code of Practice.
For more information on issues relating to the consent to the
use of tissue or organs for research you should refer to the
Human Tissue Authority:
www.hta.gov.uk/guidance/codes_of_practice.cfm
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14. Interface with other legislation, policy and
procedures
The Mental Capacity Act will apply in conjunction with other laws
relevant to or affecting the property and affairs, care or treatment of
people who may lack capacity in relation to specific matters. People
who work in health and social care should also be aware of their
obligations under other laws, including (but not limited to):
Care Standards Act 2000
Data Protection Act 1998
Disability Discrimination Act 1995
Human Rights Act 1998
Mental Health Act 1983
National Health Service and Community Care Act 1990
Human Tissues Act 2004.
The MCA and the Mental Health Act 1983
The MCA may be used to treat people for mental disorder
when they cannot consent to the treatment because they lack
capacity and where the treatment is in their best interests
(see part 7).
But the MCA cannot be used to detain anyone. If you think
a person might need to be detained for treatment for mental
disorder, you will need to consider taking steps to have them
assessed with a view to detention under the Mental Health Act
1983 (MHA). If a person is detained under the MHA, the MCA
does not apply to treatment for the person’s mental disorder
which can be given without consent under the MHA itself.
This is because even people who have capacity to consent
cannot refuse such treatment. It also means that attorneys
(and deputies) cannot consent or refuse such treatment on the
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patient’s behalf. For the same reason, an advance decision to
refuse treatment for mental disorder can be over-ridden where
necessary.
For most other purposes, the MCA will continue to apply to
a patient detained under the MHA. This means, for example,
that an advance decision to refuse treatment for any illness or
condition other than mental disorder is not affected, nor is any
power an attorney has to consent to such treatment. It also
means that where a detained patient lacks capacity to consent
to treatment other than treatment for mental disorder, the
decision-maker will need to act in accordance with the MCA.
For more detail on the interface between the MCA and the Mental
Health Act 1983 you should read the Code of Practice.
The MCA and assessment processes across health and social
care
There are currently a range of national assessment processes in
place across health and social care, including:
The Single Assessment Process (SAP) in England, called the
Unified Assessment Process (UAP) in Wales, which is the way
care and treatment is planned and provided for older people
The Care Programme Approach (CPA) which is the way care
and treatment is planned and provided to adults who receive
statutory mental health services
Person-Centred Planning which is the way care and treatment
is planned and provided to adults with a learning disability.
These assessment processes may also involve people who work in
voluntary and independent sector care services.
If you work as part of any of these processes, such as a CPA care
co-ordinator for someone, you should consider how the MCA will
apply, and how it will help you and the person you are caring for.
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The MCA will help emphasise the importance of ensuring the
individual is at the centre of these processes including decision-
making and processes about the care and treatment the person
receives. The MCA also emphasise that the person should be
supported as much as possible to make their own decisions, even
where you may consider these decisions to be unwise (see part 5).
If you are involved in the assessment of someone’s needs, providing
care and treatment as part of a person’s care plan, or reviewing
their care plan you will have to take into account the provisions of
the MCA. For example:
you may have to assess the person’s capacity to make certain
decisions about their care or treatment (see part 6)
when you make a decision for a person who lacks capacity you
will have consider what is in their best interests (see part 7)
if the person has planned ahead and has made an advance
decision to refuse treatment that is valid and applies to the
treatment you are proposing you will have to abide by it
(see part 10)
if the person has made a written statement of wishes and
feelings you will need to take this into account (see part 10)
if the person has made an LPA (particularly one for health and
welfare) and now lacks capacity, you will need to involve the
attorney in the planning and provision of care or treatment (see
part 10). If the LPA gives the attorney the power to consent to
or refuse treatment or care on behalf of the person you will need
to ensure that the decision made by the attorney is treated in the
same way as a decision made by the person this (see part 10).
the person may request your help in making a written statement
or advance decision to refuse treatment (see part 10).
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The MCA and Social Security appointees
Some people who receive benefits or pensions will lack capacity
to act for themselves. In those circumstances an appointee is
appointed by the Department of Work and Pensions (DWP) to claim,
spend and manage the benefit or pension on the person’s behalf.
If you are an appointee for someone who lacks capacity to
make financial decisions, or you work with someone who has an
appointee, the appointeeship should be carried out in accordance
with the MCA. For example, decisions on how the person’s money
should be spent should be done according to the best interest
principle (see part 7) and the principle about doing things that are
least restrictive of a person’s rights and freedoms (see part 4).
If there is evidence that the appointee is not following these
principles the appointment can be revoked.
The MCA and the Human Tissue Act 2004
The Human Tissue Act 2004 deals with, amongst other things,
issues relating to the consent to the use of tissue or organs for
purposes such as transplantation, research or gaining information
that may be relevant to another person.
Before considering the storage or use of tissues or organs for any
of these purposes from people who lack the capacity to consent,
healthcare professionals must take into account the Human Tissue
Act 2004. Further guidance is available from the Human Tissue
Authority: www.hta.gov.uk/guidance/codes_of_practice.cfm
The MCA and children and young people
1 Where the MCA applies to young people aged 16 to 17
There is an overlap between the MCA and the Children Act
for 16 and 17 year olds and most of the provisions of the
MCA apply to young people and the Code of Practice for the
MCA will give guidance on how to proceed.
Any decisions relating to the treatment of young people of
16 or 17 years old must be made in their best interests and
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in accordance with the principles of the MCA. As with all
such decisions, the decision-maker must, where practicable
and appropriate, consult the person’s family and friends,
especially those with parental responsibilities, as part of the
best interests decision-making process (see part 7).
2 Where the MCA does not apply to young people aged 16-17
There are certain parts of the MCA that will not apply to young
people aged 16-17 years old, as the MCA requires a person to
be 18 or over. These are:
making a Lasting Power of Attorney (see part 10)
making an advance decision to refuse treatment (see part 10)
making a will. The law generally does not allow people under
18 to make a will and the MCA confirms that the Court of
Protection has no power to make a will on behalf of anyone
under 18.
3 Where the MCA applies to children under the age of 16
In most situations the care and welfare of children under 16 will
continue to be dealt with under the Children Act 1989.
There are two parts of the MCA that will apply to children under 16:
The Court of Protection’s powers to make decisions
concerning the property and affairs of a child under the age
of 16. The Court can make these decisions where the Court
considers it likely that the child will lack capacity to make
decisions about their property and affairs even when they are
16 (see part 12).
The criminal offence of ill treatment or wilful neglect also
applies to children under 16 who lack capacity as no lower
age limit is specified for the victim (see part 9).
The Code of Practice explains in more detail about legal proceedings
for young people and the relationship with other relevant laws such
as the Children Act 1989.
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15. What if I want to know more about the MCA?
If you would like to know more about the Mental Capacity Act you
can call 0845 330 2900 or email makingdecisions@dca.gsi.gov.uk
Other sources of useful information and guidance includes:
Title Available from
Other information booklets
like this one
You can view these electronically by
going to: www.dca.gov.uk/legal-policy/
mental-capacity/publications.htm
To order hard copies you can email:
reorder@inprintlitho.com
Free newsletter update
on the implementation of
the MCA. This will keep
you up to date on events,
communications products
and training materials on
the MCA
To subscibe, email:
makingdecisions@dca.gsi.gov.uk
The Mental Capacity Act
2005
You can view this for free by going to:
www.dca.gov.uk/legal-policy/mental-
capacity/index.htm
Or you can order a hard copy from TSO
by calling 0870 600 5522 or emailing
customerservices@tso.co.uk
The Code of Practice for the
Mental Capacity Act
When the Code is published you will be
able to download it for free by going to:
www.dca.gov.uk/legal-policy/mental-
capacity/index.htm
You can order a hard copy from TSO
by calling 0870 600 5522 or emailing
customerservices@tso.co.uk.
Best practice tool to
assist with testing your
organisation’s readiness for
the implementation of the
MCA
www.dh.gov.uk/
PublucationsAndStatistics/Bulletins/
ChiefExecutiveBulletin
(and then go to Chief Execs Bulletin Issue
329, 28 - July 3 August 2006)
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Title Available from
MCA Regional
Implementation Leads in
England and Wales
To get the contact details of the lead go
for your area:
Email:
makingdecisions@dca.gsi.gov.uk
(for England)
sarah.austin@wales.gsi.gov.uk
(for Wales)
Training Materials on
the MCA for people who
work in health and social
care
These will only be available from late
April 2007. For more information go to
www.dh.gov.uk
Information on the IMCA
service, IMCA Pilots and
training materials for
IMCAs
www.dh.gov.uk/imca
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16. Some useful contacts
The following government departments are working together to
implement the Mental Capacity Act in 2007
Department What it is/does Contact
Department for
Constitutional
Affairs (DCA)
Responsibilities include
running the courts, and
improving the justice system,
human rights, information
rights law, policy on running
elections and modernising the
constitution
5th Floor Steel House, 11 Tothill St,
London, SW1H 9LH
www.dca.gov.uk/legal-policy/
mental-capacity/index.htm
T 020 7210 0038/39
E makingdecisions@dca.gsi.gov.uk
Department of
Health (DH)
DH is responsible for setting
health and social care policy
in England. The Department’s
work sets standards and
drives modernisation across
all areas of the NHS, social
care and public health
Wellington House, 133-155
Waterloo Road, London, SE1 3UG
www.dh.gov.uk
T 020 7210 4850
Public
Guardianship
Office (PGO)
PGO is the administrative
arm of the Court of Protection
and part of the Department
for Constitutional Affairs. It
provides financial protection
services for clients who are
not able to manage their
financial affairs because of
mental incapacity
Archway Tower, 2 Junction Road,
London, N19 5SZ
www.guardianship.gov.uk
T 0845 330 2900
E custserv@guardianship.gsi.gov.uk
Welsh Assembly
Government
The Assembly develops policy
and approves legislation
that reflects the needs of the
people of Wales
Cathays Park, Cardiff, CF10 3NQ
www.wales.gov.uk
T 029 2082 5111
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The following organisations were involved in writing and advising
on this booklet
Organisation What it is/does Contact
Making
Decisions
Alliance
It includes: Action on Elder Abuse, Age Concern England, Alzheimer’s
Concern Ealing, Alzheimer’s Society, Beth Johnson Foundation,
Carers UK, Centre for Policy on Ageing, Cloverleaf Advocacy,
Consumer Forum, Different Strokes, Down’s Syndrome Association,
Foundation for People with Learning Disabilities, Headway, Help the
Aged, Horsham Gateway Club, Independent Advocacy Service, Kent
Autistic Trust, Leonard Cheshire, Mencap, Mental Health Foundation,
Mind, Motor Neurone Disease Association, National Autistic Society,
North Staffordshire Users Group, The Oaklea Trust, Patient Concern,
Powerhouse, Relatives and Residents Association, Respond,
Rethink, Rett Syndrome Association, St Clements Patient Council,
Scope, Sense, Skills for People, Stroke Association, Turning Point,
United Response, WITNESS
www.makingdecisions.org.uk
Action for
Advocacy
A resource and support
agency for the advocacy
sector, information, training
and advice
PO Box 31856, Lorrimore Square,
London, SE17 3XR
www.actionforadvocacy.org
Age Concern
England
The UK’s largest organisation
working to promote the
Wellbeing of all older people.
It provides vital services,
information and support to
thousands of older people -
of all ages and backgrounds
Astral House, 1268 London Road,
London, SW16 4ER
www.ageconcern.org.uk
www.accymru.org.uk
Information line 0800 00 99 66
Alzheimer’s
Society
The UK’s leading care and
research charity for people
with dementia, their families
and carers
Gordon House, 10 Greencoat
Place, London, SW1P 1PH
www.alzheimers.org.uk
Helpline 0845 300 0336
Association of
Black Social
Workers
and Allied
Professions
The Association aims to
improve the quality of health
and social care for Black
users and staff
65 Woodrow, Woolwich, London,
SW18 5DH
T 020 8 854 7402
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Organisation What it is/does Contact
Association
of Directors of
Social Services
(ADSS)
Represents all the Directors of
Adults Social Services (DASS)
and Directors of Children’s
Services (DCS) in England,
Wales and Northern Ireland
ADDSS Administrator, ADDSS
Business Unit, Local Government
House, Smith Square, London,
SW1P 3HZ
www.adss.org.uk
T 020 7072 7433
F 020 7863 9133
British
Association of
Social Workers
(BASW)
The largest association
representing social work and
social workers in the UK.
16 Kent Street, Birmingham,
B5 6RD
www.basw.co.uk
T (0121) 622 3911
F (0121) 622 4860
British Medical
Association
(BMA)
BMA represents doctors from
all branches of medicine all
over the UK
MA House, Tavistock Square,
London, WC1H 9JP
www.bma.org.uk
T 020 7387 4499
F 020 7383 6400
Carers UK
Looks after family, partners
or friends in need of help
because they are ill, frail or
have a disability
20/25 Glasshouse Yard, London,
EC1A 4JT
www.carersuk.org
T 020 7566 7637
F 0207490 8824
Down’s
Syndrome
Association
Provides information and
support for people with
Down’s syndrome, their
families and carers, as well as
being a resource for interested
professionals
Langdon Down Centre,
2a Langdon Park, Teddington,
Middlesex, TW11 9PS
www.downs-syndrome.org.uk
T 0845 230 0372
F 0845 230 0373
English
Community
Care
Association
The largest representative
body for community care in
England
4th Floor, 145 Cannon Street,
London
www.ecca.org.uk
T 020 7220 9595
F 020 7220 9596
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Organisation What it is/does Contact
Foundation
for People
with Learning
Disabilities
Works with people with
learning disabilities, their
families and those who
support them to improve
the quality of their lives and
promotes the rights, quality
of life and opportunities
of people with learning
disabilities and their families
Sea Containers House, 20 Upper
Ground, London, SE1 9QB
www.learningdisabilities.org.uk
T 020 7803 1100
General Medical
Council (GMC)
GMC registers doctors to
practise medicine in the UK
Regents Place, 350 Euston Road
London, NW1 3JN
T 0845 357 3456
F 0845 357 8001
Headway
– the brain injury
association
Promotes understanding of all
aspects of brain injury; and to
provide information, support
and services to people with
a brain injury, their family and
carers
4 King Edward Court Service , King
Edward Street, Nottingham,
NG1 1EW
www.headway.org.uk
T 0115 9240800
Helpline 0808 800 2244
Local
Government
Association
(LGA)
Promotes the interests of
English and Welsh local
authorities – a total of just
under 500 authorities
Local Government House, Smith
Square, London, SW1P 3HZ
www.lga.gov.uk
T 020 7664 3131
F 020 7664 3030
Mental Health
Foundation
A leading UK charity that
provides information, Carries
out research, campaigns and
works to improve services for
anyone affected by Mental
health problems, whatever
their age and wherever they
live
Sea Containers House, 20 Upper
Ground, London, SE1 9QB
www.mentalhealth.org.uk
T 020 7803 1100
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Organisation What it is/does Contact
MIND
A leading mental health
charity, working to create a
better life for everyone with
experience of mental distress.
Provides information and
support mental health charity
in England and Wales
15-19 Broadway, Stratford, London,
E15 4BQ
www.mind.org.uk
T 0208 519 2122
National Autistic
Society (NAS)
Champions the rights and
interests of all people with
autism and to ensure that
they and their families receive
quality services appropriate to
their needs
393 City Road, London, EC1V 1NG
www.autism.org.uk
Autism helpline 0845 070 4004
National Care
Association
(NCA)
Represents the interests and
provides services to support
small and medium sized
providers of social care in
England and Wales
45-49 Leather Lane, London,
EC1N 7JT
www.nca.gb.com
T 020 7831 7090
National Care
Forum
Established to represent
the interests of not-for-
profit health and social
care providers in the United
Kingdom
National Care Form,
3 The Quadrant, Coventry,
CV1 2DY.
www.nationalcareforum.org.uk
T 024 7624 3619
The National
Family Carer
Network
Provides a focal point for
issues affecting families
that include an adult with a
learning disability
Merchants House, Wapping Road,
Bristol, BS1 4RW
www.familycarers.org.uk
T 0117 930 2600
The National
Family Carer
Support Service
Provides support and
information for family carers
Merchants House, Wapping Road,
Bristol, BS1 4RW
www.hft.org.uk/page15a.html
T 0117 930 2608
Patient Concern
An organisation committed
to promoting choice and
empowerment for all health
service users
PO Box 23732, London, SW5 9FY
www.patientconcern.org.uk
E patientconcern@hotmail.com
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Organisation What it is/does Contact
The Relatives
and Residents
Association
An organisation for older
people needing, or living
in, residential care and the
families and friends left behind
24 The Ivories, 6-18 Northampton
Street, London, N1 2HY
www.relres.org
T 020 7359 8148
RESCARE
The national society for
children and adults with
learning disabilities and their
families
Steven Jackson House, 31 Buxton
Road, Heaviley, Stockport, SK2 6LS
www.rescare.org.uk
T 0161 474 7323
RESPOND
Provides a range of services
for both victims and
perpetrators of sexual abuse
who have learning disabilities
and those who have been
affected by other trauma. Their
services extend to support and
training for families, carers and
professionals.
3rd Floor, 24-32 Stephenson Way,
London, NW1 2HD
T 020 7383 0700
F 020 7387 1222
www.respond.org.uk
Helpline 0808 808 0700
Royal College
of Nursing
(RCN)
Represents nurses and
nursing
20 Cavendish Square, London,
W1G 0RN
www.rcn.org.uk
T 020 7409 3333
Royal College
of Psychiatrists
The professional and
educational body for
psychiatrists in the United
Kingdom and the Republic of
Ireland
17 Belgrave Square, London,
SW1X 8PG
www.rcpsych.ac.uk
T 020 7235 2351
Social Care
Association
A vibrant, inclusive and
informed Association which
visibly promotes positive
practice within all social care
services throughout the UK
Thornton House, Hook Road,
Surbiton, Surrey, KT6 5AN
www.socialcareassociation.co.uk
T 020 8 397 1411
Scope
Disability organisation in
England and Wales, whose
focus is people with cerebral
palsy
6 Market Road, London, N7 9PW
www.scope.org.uk
T 020 7619 7100
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Organisation What it is/does Contact
Sense
Charity providing specialist
information, advice and
services to deaf blind people,
their families, carers and the
professionals who work with
them. Funded to develop
training materials which
address the advocacy issues
for deaf blind people
11-13 Clifton Terrace, Finsbury
Park, London, N4 3SR
www.sense.org.uk
T 0845 127 0060
F 0845 127 0061
Text 0845 127 0062
Turning Point
The UK’s leading social
care organisation, providing
services for people with
complex needs, including
those affected by drug and
alcohol misuse, mental health
problems and those with a
learning disability
New Loom House, 101 Backchurch
Lane, London E1 1LU
www.turning-point.co.uk
T 020 7702 2300
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Other booklets in this series include:
1 Making decisions about your health, welfare or finance.
Who decides when you can’t?
2 Making decisions. A guide for family, friends and other
unpaid carers
4 Making decisions. A guide for advice workers
5 Making decisions. An Easy Read guide
These booklets are available in other formats on request.
To order:
T 023 80 878038 or 023 80 878036
F 023 80 528324
E reorder@inprintlitho.com
The booklets are also available online at:
www.dca.gov.uk/legal-policy/mental-capacity/publications.htm
The Mental Capacity Implementation Programme published
this booklet. It was written by the National Care Association.
2nd edition February 2007
© Crown copyright 2006
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