A Concise Guide to the Mental Capacity Act

Basic Principles in Practice

Dr Tracey Ryan-Morgan

• Publisher: Routledge
• Year: 2021
• ISBN:
  9781000520132
• Edition: 1
• Topic: Psychologie
• Subtopic: Neuropsychologie

This book provides a clear introduction to the Mental Capacity Act (MCA, 2005), offering an easy reference guide to the complex issues enshrined within the Act to inform the everyday practice of those who need to perform within its parameters as part of their day-to-day work.

Bringing together clinical neuropsychology expertise with legal commentary, the book introduces the main principles and presumptions of the MCA (2005) and describes the processes involved in the comprehensive assessment of what can, in practice, be complex issues. It provides learning summaries, flowcharts, checklists and web references for easy to access resources. The chapters also contain a broad range of illustrative case examples with considerable emphasis given to those areas of complexity that are not addressed in current guidance and which often prove contentious in everyday practice, such as how particular forms of brain injury can lead to hidden difficulties with decision-making which can be challenging to assess and evidence in practice.

The book is essential reading for trainee nurses, doctors, paramedics, social workers, lawyers, psychologists and health and social care support workers, as well as experienced health and social care professionals such as ward managers and care and nursing home managers who face mental capacity issues in their day to day working role.

Chapter 1 Introduction to the Mental Capacity Act (2005)

DOI: 10.4324/9781003205210-1

1 What is the Mental Capacity Act (2005)?

The Mental Capacity Act (MCA, 2005) is a piece of statutory legislation which is concerned with balancing the rights of the individual to make decisions with the need to protect those who are vulnerable as a result of impairment to the mind or brain. The Act focuses on the person making a specific decision at a specific time. Any test of capacity is always a legal, and not a clinical, one. The Act only applies to England and Wales and, currently, only to adults.

2 Five principles of the Mental Capacity Act (2005)

• i) A presumption of capacity – 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. The Vice President of the Court of Protection, Hayden J, stated that:

  There is only one presumption in the MCA, namely that set out at Section 1 (2) i.e. ‘a person must be assumed to have capacity unless it is established that he lacks capacity’. This recognition of the importance of human autonomy is the defining principle of the Act. It casts light into every corner of this legislation.¹

  1 Hayden J [2019] EWCOP 22, paragraph 53, sub-paragraph (h).

• ii) The right for individuals to be supported to make their own decisions – people must be given all appropriate help (and information) before anyone concludes that they cannot make their own decisions. The information should be accessible, relevant and tailored to their individual needs, supported wherever possible, practicable and relevant by aids to augment their ability to take it on board (National Institute for Health and Care Excellence, NICE, 2018, paragraph 1.1.5).
• iii) Individuals must retain the right to make what might be seen as eccentric or unwise decisions. This is an interesting principle that leads to all kinds of misunderstandings. One needs to seek evidence of the person demonstrating a logical and consistent train of thought. You might ask whether the person is able to evaluate risk and whether they have considered the consequences of action/inaction in arriving at their decision. If the answer is “yes”, it may be no more than an unwise decision. If the answer is “no”, then there may be grounds to question their mental capacity to make that particular decision. A rule of thumb that may be helpful in your deliberations is to consider when an “unwise” decision could also be classed as an “unsafe” one. At this point, there may be grounds to look closer, using the Mental Capacity Act as a framework. However, there is a note of caution expressed by Jackson J, who had stated that:

  The temptation to base a judgement of a persons capacity upon whether they seem to have made a good or bad decision, and in particular on whether they have accepted or rejected medical advice, is absolutely to be avoided. That would be to put the cart before the horse or, expressed another way, to allow the tail of welfare to wag the dog of capacity. Any tendency in this direction risks infringing the rights of that group of persons who, though vulnerable, are capable of making their own decisions.²

  2 Heart of England NHS Foundation Trust v JB [2014] EWHC 342 (COP), paragraph 7.

• iv) Best interests – anything done for or on behalf of people without capacity must be in their best interests (see Section 6 to follow for a definition and for guidance as to the process).
• v) Least restrictive intervention – anything done for or on behalf of people without capacity should be an option that is least restrictive of their basic rights and freedoms – as long as it is still in their best interests.
  Paragraph 1.5.15 of the NICE Guidance (2018) provides some useful pointers (pp. 29–30):
  • What the person would prefer, including their past and present wishes and feelings, based on past conversations, actions, choices, values or known beliefs;
  • What decision the person who lacks capacity would have made if they were able to do so;
  • All the different options should be considered;
  • The restrictions and freedoms associated with each option (including possible human rights infringements); and
  • The likely risks associated with each option (including the potential negative effects on the person who lacks capacity to make a decision – for example, trauma or disempowerment).

It should be noted that “least restrictive” does not mean non-restrictive.

Justice Hayden stated:

The obligation of this Court to protect P is not confirmed to physical, emotional or medical welfare, it extends in all cases and at all times to the protection of P’s autonomy.³

3 [2020] EWCOP 34

Key Learning Points

• The Mental Capacity Act is about adults making decisions.
• There are five principles which underpin the Act.
• Any assessment of mental capacity must start from a presumption of capacity.

3 What are the key elements of a Mental Capacity assessment?

• a) Diagnostic test

  The diagnostic test requires that there is evidence of impairment to the mind or brain which may be temporary or permanent. If this test is not met, there should be no further assessment of mental capacity.

• b) Functional test. Here the person being assessed must be able to:
  1. Understand the “salient facts”. The assessor must establish the “Threshold of Understanding” (see Paragraph 5(f)) and assess the person’s ability to understand the reasonably foreseeable consequences of reaching a decision or failing to do so, as outlined in s.3(4) of the MCA.
  2. Recall. The question is, how long does someone need to remember the information for? How much do they need to remember? “The person must be able to hold the information in their mind long enough to use it to make an effective decision” (paragraph 4.20, page 47 of the Code of Practice). However, the assessor should ensure that all assistance is provided in terms of visual aids, written material, prompts, gestures and cues to support a person’s ability to recall the information pertinent to the decision.
  3. Weigh up and use. Ruck-Keene & Ors (2021) cite a helpful case in describing this aspect of the test as:

     “The capacity to actually engage in the decision-making process itself and to be able to see the various parts of the argument and to relate the one to another”.⁴ The person only needs to be able to weigh the salient, relevant factors, not all factors, in being able to reach a decision. There is a difference between the person being unable and not wishing to give weight to a piece of relevant information.

     4 The PCT v P, AH & the Local Authority [2009] EW Misc 10 (COP)

  4. Communicate the decision once made.
     Once the assessment reaches this limb, it should be clear whether or not the person has capacity to make the decision. This element only refers to the person’s ability to communicate the decision, once made. It, therefore, will only refer to a small number of individuals, and, once again, the onus is on the assessor to maximise the person’s ability. NICE (2018), in paragraph 1.4.17, page 23, states:

     “This may include involving an interpreter, speech and language therapist, someone with sensory or specialist communication skills, clinical psychologists or other professionals to support communication”. It might involve the use of communication aids or assistive technology.

• c) Causative nexus
  What is the causative nexus? Essentially, this refers to the requirement to evidence that the person’s impairment of mind or brain is the reason why they are unable to make a specific decision at the material time. It is important to be clear that it is not enough for the impairment to make it difficult to make a decision. It has to be the case that because of the impairment, the person is unable to make the material decision.
• d) What about decisions that have a different legal test?
  The legal test of mental capacity does not have universal application, as there are some decisions in which there are specific legal tests already established that the assessor needs to be aware of. For example:
  1. To have sex. This issue is currently before Supreme Court but, at time of writing, is focused on the capacity to engage in (throughout the act of), rather than consent to (at the start of the act of), sexual relations. Current case law refers to the decision being “issue”- and not “person”-specific. However, the focus on the ability to weigh up the relevant information in arriving at the decision remains key.
  2. To marry. The test for capacity here is that the issue is “status”- rather than “person”-specific. The person must understand the broad nature of the marriage contract and also the duties and responsibilities that go with it. The person must not lack capacity to engage in sexual relations.
  3. To make a Will. This requires the person to have an understanding of what a Will is, of their assets, of who may reasonably expect to benefit at their death and also to be free of any “disorder of mind”.
  4. To make a gift. The threshold for mental capacity for this action is that the person is capable of “understanding the effect of the deed when its general purport has been explained to him”. The degree of understanding is held to be relative to the transaction.
  5. To enter into a contract. This refers to a specific contract at a particular point in time and not to contracts in general. The person must be capable of understand the nature and effects of the contract that they are proposing to enter into and to be in agreement with them.
  6. To litigate. If a lack of capacity is not considered or mitigated in legal proceedings, then the proceedings ultimately can have no ef...