The Mental Capacity Act (MCA) came into force in October 2007. Its aim is to protect people who may not be able to make certain decisions for themselves and to empower them to make their own decisions where possible. The MCA only applies to persons who are 16 or over.
Section 1 of the MCA defines the guiding principles of the Act. One of those is that a person must always be assumed to have capacity unless it is established that they lack capacity.
Another important principle is that a person is not to be treated as unable to make a decision merely because others may think that their decision is unwise.
Mental capacity means that a person is able to understand and retain the relevant information, make a decision based on that information and then communicate that decision.
A person's capacity may vary depending on the nature of the decision they have to make.
The nature of their illness or condition might mean that their capacity to make a decision may change daily. The person may be able to make the decision with assistance. Where someone may have difficulty in communicating a decision, attempts should always be made to overcome those difficulties before concluding that the person does not have capacity.
The MCA has a two stage test for deciding whether someone lacks capacity to make a particular decision or express their views.
Stage 1 - This looks at whether the person has an impairment of, or a disturbance in, the function of their mind or brain that makes them unable to make a specific decision at a particular time. Just because a person has a medical condition, such as dementia or learning disability, it does not mean that they lack capacity to make a particular decision.
Stage 2 - The second part of the test states that a person is unable to make a decision for themselves if they are unable to:
- understand the information given to them about the decision,
- to retain the information,
- to use or weigh up that information as part of the process of decision making or
- to communicate their decision.
If the adult lacks capacity, then a decision made on their behalf must be made in their best interests.
The MCA states that when making the decision about a person's best interest the decision maker must consider whether the person will regain their capacity to make a decision. In decisions that can wait and which are significant, it will often be appropriate to wait until the person can make the decision themselves.
They must also consider as far as reasonably ascertainable:
- the persons past and present wishes and feelings,
- their beliefs and values that would be likely to influence their decision if they had capacity, and
- if possible, the factors they would likely consider if they were able to do so.
The person taking responsibility for making the decision is called the "best interests decision maker."
Generally, the decision maker could be one of the following:-
- A person appointed to make best interests decisions under the Mental Capacity Act. These are the donee of a lasting power of attorney or a Court appointed deputy. The power of attorney or the court order will define what kind of decisions the person appointed can make.
- Where the issue relates to the services that Local Authority has a power to deliver, the local authority
- Where the issue relates to the offer of medical treatment through the NHS, the NHS
- the carers of a person;
The "best interest decision maker" has a duty to consult with anyone named by the person as someone to be consulted on the particular question or any other person who may make a relevant input and where it is proportionate and appropriate to consult them.
It is a general policy presumption that persons engaged in caring for the adult or interested in their welfare will be consulted. Anyone appointed as attorney or deputy should, be consulted.
There are many decisions where it will not be proportionate to operate a consultation process.
For example, carers do not need to consult an attorney on what clothes the adult is going to wear that day or what they are going to eat.
However, when it comes to decisions regarding where the adult should live or whether they should have medical treatment, then a more formal process to decide what is in the person's best interest needs to be followed.
Where there is involvement of statutory bodies, such as the NHS or the local authority this may involve a "best interests meeting".
Where there is a major disagreement regarding best interests, the MCA gives the Court of Protection power to decide on the following:-
- whether a person lacks the capacity to make a particular decision;
- whether a particular decision made for that person is in their best interest;
- whether somebody is a suitable person to act as a Attorney of a Lasting Power of Attorney or as Deputy;
- Whether contact with someone is in the person's best interests;
- the Courts have the power to decide whether a Deprivation of Liberty (DOLs) is in the person's best interest.
The Court of Protection has no greater power to decide what should be done with respect to an adult than the adult would have had themselves if they had capacity.
This means that a Court cannot order a local authority or the NHS to provide a service that those bodies are not willing to offer. That is because the adult could not require the provision of that service.
There is a legally complex relationship between the jurisdiction of the Court of Protection in:
making bests interests decisions about matters that the adult is entitled to make a decision about themselves,
dealing with the authorisation of deprivations of liberty and
disputes with the NHS or local authority over what service the adult is entitled to.
For example, if the adult's care placement is funded by the Local Authority they will be the decision maker. There may be a dispute with relatives over whether it is in the adult's best interests to live at home or in a care home.
If the local authority agree that there is a choice of settings that they may fund but their view is that one setting and not the other is in the adult's best interests, depending on the circumstances the Court of Protection may deal with that case as a best interests determination because the issue is about the choice the adult could have made for themselves.
If the adult had already been moved into the care home and the local authority refused to offer support for the continuation of living at home, the Court of Protection may deal with the matter under the deprivation of liberty provisions.
If the local authority refused to fund domiciliary care on purely financial grounds disregarding aspects of the adult's welfare, the dispute may be appropriate for judicial review.
Before any of these routes are pursued, it is almost always good practice to engage with the decision maker on an informal or semi formal basis, to secure an agreement. The great majority of disputes over best interest decisions are resolved in this way, without expensive court action.
The starting point is that you are unhappy that significant decisions that have been made are not in the adult's best interests.
If you feel they have not then legal advice is recommended.