Ten years have passed since the Mental Capacity Act (MCA) came into force. Codifying the law on mental capacity through statute introduced a number of legal requirements intended to safeguard the interests of those people who lack capacity. Every year since the Act has been in force has brought more case law on the subject.

Perhaps one of the most significant changes brought about by the Act was that contained in section 1(3), namely that ‘a person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.’ This has imposed on those involved in the care of people who lack capacity the requirement to provide support in decision making, to enable the person lacking capacity the ability to make a decision as far as possible.

A court challenge

This provision of the Act was recently considered by the Court of Protection in the case of CH v A Metropolitan Council [2017], the facts of which were discussed in our healthcare briefing published in November 2017.

In summary, this was a claim brought by CH, a 30 year old man with Downs Syndrome and an associated learning difficulty. A question was raised as to whether he had mental capacity to consent to sexual relations. He was assessed by a Consultant Psychologist who considered that CH did not have such capacity, but needed a course of sex education to help him achieve it. This had been requested but was not provided. The result was that CH’s partner was given no option but to move into a separate bedroom in order to limit physical conduct with CH, having been informed by the local authority that to have sex with CH would be a serious criminal offence due to his lack of capacity.

Mental Capacity Act and human rights

The local authority eventually provided sex education to CH who in the course of under a year was then assessed as having required capacity to consent to sexual relations. The local authority’s delay in making arrangements for CH’s sex education resulted in it having to pay damages under the Human Rights Act as well as costs both in respect of the claim and the Court of Protection proceedings that had been brought on behalf of CH.

The failure to comply with section 1(3) of the MCA had resulted in ‘enforced abstinence from conjugal relations’ that amounted to a breach of CH’s Article 8 rights under the Human Rights Act.

This case highlights the importance of consideration being given by care home staff and others caring for people who lack capacity to what steps can be taken to assist such a person to make a decision.

The MCA Code of Practice emphasises the importance of good communication, stating that this is ‘essential for explaining relevant information in an appropriate way and for ensuring that the steps being taken meet an individual’s needs.’

What should healthcare professionals do?

When a healthcare professional undertakes a capacity assessment, that assessment should consider what steps, if any, could enable the person who lacks capacity to optimise their ability to take part in decisions so far as possible. This is not just applicable to those with learning disabilities but for all people who lack capacity, including those with dementia.

Providing appropriate help with decision making should form part of the care planning process and factor in practical steps to assist people who lack capacity to make decisions for themselves. Thought should be given to the ways information relevant to the decision is communicated to the person, taking into account the nature of their mental condition and how the information can best be conveyed to them using assistance such as visual aids.

As the MCA Code suggests, care home staff should consider asking members of the person’s family and any others who know the person well about the best form of communication. This includes whether there is a particular person who has had experience and success in communication with the resident prior to their entering the care home.

Consideration of these issues in care planning should achieve a situation where care homes are acting lawfully and in a way that is likely to result in an approach that most effectively respects the rights of those who lack capacity.