The Mental Capacity Act 2005

Ed Horowicz

Objectives

To understand what the MCA 2005 is and who it applies to. To explore the terms ‘mental capacity’ and the

‘competent’/’incompetent’ patient. Explore how a person can be deemed to not have the mental

capacity to make a decision, with regards to their health and wellbeing.

Gain an introductory understanding of how a person’s best interests can be considered under the MCA 2005.

To understand how we are allowed to treat a person in the emergency situation.

This sounds complicated!

Relax………………………… The MCA is a complex piece of legislation but none

of you are training to be lawyers? (I hope……, otherwise you are on the wrong course!) We are going to be looking at it from the

perspective of the healthcare practitioner and of course the patient.

So, lets break it down.

Mental Capacity,Over To You!

What do you think mental capacity is? How do you think it applies to a person’s

health and healthcare provision? What factors contribute to having the mental

capacity to make a decision? Is it ever right to make decisions for another

person?

The Mental Capacity Act 2005 What is it?

‘The Mental Capacity Act 2005, covering England and Wales, provides a statutory framework for people who lack capacity to make decisions for themselves, or who have capacity and want to make preparations for a time when they may lack capacity in the future. It sets out who can take decisions, in which situations, and how they should go about this.’

(MCA 2005 Code of Practice, 2007)

Who Does It Apply To? The MCA applies to all ADULTS Capacity issues for children under the age of

16 are set out in case law- Gillick and under The Children’s Act 1989.

What about 16 and 17 year olds? The Family Reform Act 1969 provides that a

competent 16 or 17 year old can consent for medical treatment.

If they lack capacity then the MCA applies.

The Ability To Make A Decision- Competence In law, a competent adult is a person who has the

mental capability to make a decision for themselves.

‘A person must be assumed to have capacity unless it is established that he lacks capacity. .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.A person is not to be treated as unable to make a decision merely because he makes an unwise decision.’

Assumptions and Mental Capacity The MCA makes it clear that assumptions

that a person lack mental capacity cannot be made purely on grounds of;

Age Appearance Disability Mental Health Ability to communicate

Example-https://www.youtube.com/watch?v=b7d3EC-cwN4

Lacking Capacity- Incompetence The MCA defines this as, ‘a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.’

What Makes Someone Unable To Make A Decision? The MCA provides that; ‘a person is unable to make a decision for himself if he is unable

— (a)to understand the information relevant to the decision, (b)to retain that information, (c)to use or weigh that information as part of the process of

making the decision, or (d)to communicate his decision (whether by talking, using sign

language or any other means). (2)A person is not to be regarded as unable to understand the

information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means).

Who Decides That A Person Lacks Mental Capacity? In healthcare we really are concerned with two

types of circumstance whereby a decision in relation to capacity is made, emergency and non-emergency.

In the emergency situation, the MCA allows clinicians to deliver life sustaining treatment, without that patient’s consent and because of them being incompetent.

E.g. The Unconscious Patient. They have an impairment which means that they satisfy the criteria under the MCA to lack capacity.

Non urgent Consider the case of a 48 year old male with

advanced early onset dementia requiring an inguinal hernia repair.

Where the treatment is not urgent then the decision can come from either,

Mental Capacity Assessor- Usually a mental health practitioner/nurse or social worker.In healthcare this is also often done in conjunction with medical support.Families or next of kin are often also involved but will not make any decisions.

Now consider the 19 year old with moderate learning difficulties who is pregnant.

Can Doctors Decide?

The MCA protects doctors from any claims in battery under the doctrine of necessity.

You will see this in practice through Consent Form 4. However, the doctor must

-Take reasonable steps to establish that the patient lacks capacity.-Reasonably believes that the patient lacks capacity and-That the act will be in the patient’s best interests.

When Do The Courts Decide? The courts would be unable to deal with every mental capacity

decision. However, court authorisation will always be required for

decisions relating to; Provision of ‘serious’ medical treatment. This means where

there is great risk of harm, the treatment is likely to cause some suffering, where there are multiple treatment options and where there is a likelihood of serious consequences.

-Examples may include termination of pregnancy for severe a patient with severe learning disabilities or indeed sterilisation. Withdrawal of artificial nutrition and hydration from a patient in

PVS or who is minimally conscious. Organ or bone marrow donation from a person who lacks

capacity.

Best Interests

What does a person’s best interests mean to you? The MCA provides a broad subjective test to

determine this.

Best Interests

What Does This Mean? Encourage as far as possible the patient to be

involved. Consider if it is likely that the patient will regain

capacity. Consider the patient’s past and present wishes and

feelings, looking at evidence whether in writing or from other people.

Consider the patient’s beliefs and values. Any other factors that could influence the patient’s

decision. Views of Next of Kin, carers, any person legally

given lasting powers of attorney and court appointed deputy’s.

Consider James v Aintree University Teaching Hospitals [2013]

Advanced Directives

A competent person can have an Advanced Directive stating what treatment or care they do not wish to receive at a future point.

Importantly this cannot authorise doctors to treat regardless of the circumstance.

-See Burke v GMC [2008] An Advanced Directive will always be given

authority over any other opinion.

Lasting Powers Of Attorney (LPA) The MCA allows a person to appoint another to

make decisions in relation to their healthcare in the event of incapacity.

Life sustaining treatment or decisions on continuation of treatment can only be given if they are expressly stated in the LPA document.

Importantly a person given responsibility for another’s healthcare decisions must make such decisions according to the best interests of the patient.

This provides issues where such a decision could conflict with the views of the person holding LPA.

What About If A Person Has No Family or Next of Kin? A sad reality of life can often mean that this is the

case. Should it just be left to the healthcare professionals

or social worker? The MCA provides that where this is the case an

Independent Mental Capacity Advocate (IMCA) is provided to support a patient without any relatives or next of kin.

This provides an advocate for the patient.

Scenarios You are on an anaesthetic placement and an 58 year old

female patient with dementia from a nursing home is listed for a diagnostic cystoscopy following bladder cancer some years ago. You are told she lacks mental capacity and has been consented by the doctor for the procedure.

What are the issues that you should be aware of with regard to the MCA?

Can the treatment proceed? Whilst waiting for surgery, the patient’s daughter asks to

speak to the surgeon and explains that before her mother’s dementia got this bad she had stated that she never wanted any more cystoscopies because she wished the cancer would come back and take her life.

What effect could this have on the procedure that day and in the future?

You are in theatre and a patient is listed for laparoscopic sterilisation.

The patient is 24 years old and has severe learning disabilities. Her mother has LPA and has made the decision because her daughter has been having a relationship with another resident of the supported living home that she lives in. The doctor has agreed that this is in her best interests.

Can the procedure lawfully take place? What are the issues with regard to the MCA?

Summary Removing decision making from a person is to deprive a

person of their autonomy at that time. The Mental Capacity Act exists to provide the legal starting

point that all adults should be presumed to have capacity. Where this is not the case, a test is provided that

importantly protects those who may appear to lack capacity such as the elderly or disabled.

Best Interests are not decided on the basis of a healthcare professionals opinion but must take into account the patient from a holistic perspective.

A person can use an Advanced Directive to explicitly state what treatment they would not want.

A person can appoint another to make decisions on their behalf, through Lasting Powers of Attorney.

The Court can also appoint a Deputy to do the same.

References

DEPARTMENT FOR CONSTITUTIONAL AFFAIRS, 2007. The Mental Capacity Act 2005 Code of Practice. London: HMSO.

GREAT BRITAIN. PARLIAMENT, 1989. The Children’s Act 1989. London: HMSO.

GREAT BRITAIN.PARLIAMENT, 2005. The Mental Capacity Act 2005. London: HMSO.

HERRING, J. 2012. Medical Law and Ethics. 5th Edition, Oxford: Oxford University Press.

PATTINSON, S. 2011. Medical Law and Ethics. 3rd Edition, London: Sweet and Maxwell.