The Mental Capacity Act 2005 (“MCA”) applies in England and Wales to anyone over the age of 16 years whose mental capacity to make decisions is affected by "an impairment of, or a disturbance in the functioning of, the mind or brain." Capacity may be affected on a permanent or temporary basis, and may fluctuate so that a person's decision-making ability is affected at certain times. Likewise, a person may have capacity to make some types of decisions but not others.

It should not be automatically assumed that those detained under the Mental Health Act 1983 (“MHA”) lack capacity but the decision-making ability of some people suffering from mental illness is affected.

Key test

The test of whether a person is able to make a decision is whether they can understand the information relevant to the decision, retain that information, use or weigh that information in making the decision and communicate the decision (by any means that can be understood).

Care providers need to be able to demonstrate how they are meeting their legal obligations in caring for those who lack capacity, as set out in the MCA. Both the House of Lords Select Committee and the Care Quality Commission have recently highlighted what they regard as a lack of awareness in social care settings in relation to the use of the MCA.

According to a new report from the Social Care Institute for Excellence (“SCIE”), there are around 2 million people who are thought to lack capacity to make decisions about their care. The report entitled "The Mental Capacity Act (MCA) and Care Planning" was published in October 2014 and is available at www.scie.org.uk. The report is aimed at commissioners and providers of care and provides practical guidance as to how to conduct care planning whilst remaining compliant with the MCA.

Failure to act within the MCA has a number of serious implications for providers and staff which may include legal challenges/claims from relatives, investigations by regulators, local authorities and the police, a finding of neglect at Inquest and potential prosecution. All of these can have severe consequences both financially and in terms of damage to reputation.

Care providers and their staff who look after people over the age of 16 years are required to work within the MCA framework and its associated Code of Practice. Care planning is a formal means of ensuring care and support is compliant with the MCA but the SCIE report identifies an ongoing lack of clarity about how care planning fits within the MCA framework.

Five key principles

The MCA is formulated upon five key principles and the SCIE report provides practical advice on the key considerations for care planning - click here to download a summarised table of them for reference.

The best interests checklist is set out in the MCA and comprises the following:

  • Assumptions should not be made on the basis of age, appearance, condition or behaviour.
  • Consider all the relevant circumstances.
  • Consider whether or when the person will have capacity to make the decision.
  • Support the person’s participation in any acts or decisions made for them.
  • A decision about life-sustaining treatment should not be motivated by a desire to bring about the person's death.
  • Consider the person’s expressed wishes and feelings, beliefs and values.
  • Take into account the views of others with an interest in the person’s welfare, their carers and those appointed to act on their behalf.

For care providers, one of the key messages of the report is that they need to meet the duty of care without adopting an overly paternalistic approach where they impose a regime which they believe is in a person's best interests without properly considering whether they have capacity, or can be assisted to make their own decisions.

The MCA provides protection from civil and criminal liability where its principles are followed in the provision of care, treatment and support. It is therefore crucial that care plans should be developed in conjunction with the person and, where possible, their relatives, should clearly state how care and support will be delivered and should then be shared and reviewed with the person and/or their representative.