Mental Capacity Act 2005
Just Health are EXPERTS IN carrying out a Mental Capacity Assessment
We Protect those you care about!
Our Capacity Assessments are in line with the Mental Capacity Act we:
- Always assume capacity
- Provide support to make a decision
- A person has the right to make an unwise decision
- If a person can’t make their own decisions, decisions must be in their best interest and least restrictive option
Just Health provide an easy to use hassle free service with everything explained in simple, layman’s terms to the client. Our Assessments include one visit to the client’s home, an assessment, travel, reading time, completion of the relevant documentation, and issuing a certification (assuming the client is deemed to have capacity).
Contact JUST HEALTH for a fast professional efficient service. Discuss your needs with our Medico legal Team. Call 01282 936900. Click Here to See our Pricing for each assessment.
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Mental Capacity Act 2005
The Mental Capacity Act (MCA) is designed to protect and empower people who may lack the mental capacity to make their own decisions about their care and treatment. It applies to people aged 16 and over.
It covers decisions about day-to-day things like what to wear or what to buy for the weekly shop, or serious life-changing decisions like whether to move into a care home or have major surgery.
The Mental Capacity Act says:
- assume a person has the capacity to make a decision themselves, unless it’s proved otherwise
- wherever possible, help people to make their own decisions
- don’t treat a person as lacking the capacity to make a decision just because they make an unwise decision
- if you make a decision for someone who doesn’t have capacity, it must be in their best interests
- treatment and care provided to someone who lacks capacity should be the least restrictive of their basic rights and freedoms
The MCA also allows people to express their preferences for care and treatment, and to appoint a trusted person to make a decision on their behalf should they lack capacity in the future.
People should also be provided with an independent advocate, who will support them to make decisions in certain situations, such as serious treatment or where the individual might have significant restrictions placed on their freedom and rights in their best interests.
Examples of people who may lack capacity include those with:
- a severe learning disability
- a brain injury
- a mental health illness
- a stroke
- unconsciousness caused by an anaesthetic or sudden accident
But just because a person has one of these health conditions doesn’t necessarily mean they lack the capacity to make a specific decision.
Someone can lack capacity to make some decisions (for example, to decide on complex financial issues) but still have the capacity to make other decisions (for example, to decide what items to buy at the local shop).
The MCA sets out a 2-stage test of capacity:
1) Does the person have an impairment of their mind or brain, whether as a result of an illness, or external factors such as alcohol or drug use?
2) Does the impairment mean the person is unable to make a specific decision when they need to? People can lack capacity to make some decisions, but have capacity to make others. Mental capacity can also fluctuate with time – someone may lack capacity at one point in time, but may be able to make the same decision at a later point in time.
Where appropriate, people should be allowed the time to make a decision themselves.
The MCA says a person is unable to make a decision if they can’t:
- understand the information relevant to the decision
- retain that information
- use or weigh up that information as part of the process of making the decision
Before deciding a person lacks capacity, it’s important to take steps to enable them to try to make the decision themselves.
- does the person have all the relevant information they need?
- have they been given information on any alternatives?
- could information be explained or presented in a way that’s easier for them to understand (for example, by using simple language or visual aids)?
- have different methods of communication been explored, such as non-verbal communication?
- could anyone else help with communication, such as a family member, carer or advocate?
- are there particular times of day when the person’s understanding is better?
- are there particular locations where the person may feel more at ease?
- could the decision be delayed until they might be better able to make the decision?
You can grant a Lasting Power of Attorney (LPA) to another person (or people) to enable them to make decisions about your health and welfare, or decisions about your property and financial affairs.
Separate legal documents are made for each of these decisions, appointing one or more attorneys for each.
Powers of attorney can be made at any time when the person making it has the mental capacity to do so, provided they’re 18 or over.
An LPA must be registered. An LPA can be registered at any time, but a personal welfare LPA will only be effective once the person has lost the capacity to make their own decisions.
When acting under an LPA, an attorney (the appointed person) must:
- make sure the MCA’s statutory principles are followed
- check whether the person has the capacity to make that particular decision for themselves – if they do, a personal welfare LPA can’t be used and the person must make the decision
In addition, the Court of Protection will be able to appoint deputies who can also take decisions on health and welfare and financial matters if the person concerned lacks the capacity to make a decision.
They’ll come into action when the court needs to delegate an ongoing series of decisions rather than one decision.
If the person concerned already has an LPA appointed, they won’t normally need a deputy as well.
The Office of the Public Guardian registers LPAs, and supervises court-appointed deputies.
It provides evidence to the Court of Protection and information and guidance to the public.
The Public Guardian works with a range of agencies, such as the financial sector, police and social services, to investigate concerns.
The Court of Protection oversees the operation of the Mental Capacity Act and deals with all issues, including financial and serious healthcare matters, concerning people who lack the mental capacity to make their own decisions.
The court also tries to resolve all disputes when the person’s carer, healthcare worker or social worker disagree about what’s in the person’s best interests, or when the views of the attorneys conflict in relation to property and welfare.
The court hears important cases, such as whether the NHS should withdraw treatment, whether a serious medical treatment decision is in a person’s best interests, or whether it’s in a person’s best interests to be deprived of their liberty.
Cases can be brought to the court by family members, as well as advocates and professionals involved in decisions.
The Mental Capacity Act applies to all professions – doctors, nurses, social workers, occupational therapists, healthcare assistants, and support staff.
These staff and their employers have a duty to ensure they know how to use it.
To fall within the scope of the MHA, the person has to have a mental disorder within the meaning of the act, which is defined as “any disorder or disability of the mind” .
The MHA is mainly focused on the assessment and treatment of mental disorder in hospital settings.