The Mental Capacity Act 2005 (MCA) provides a framework to assess whether a patient has capacity to take decisions, for example, whether to consent to medical treatment, or whether to agree to a proposed home care package.

The Act makes clear who can take decisions in which situations, and how they should go about this. Anyone who works with or cares for an adult who lacks capacity must comply with the MCA when making decisions or acting for that person.

This applies whether decisions are life changing events or more every day matters and is relevant to adults of any age, regardless of when they lost capacity.

The underlying philosophy of the MCA is to ensure that those who lack capacity are empowered to make as many decisions for themselves as possible and that any decision made, or action taken, on their behalf is made in their best interests.

The five key principles in the Act are:

  1. Every adult has the right to make his or her own decisions and must be assumed to have capacity to make them unless it is proved otherwise.
  2. A person must be given all practicable help before anyone treats them as not being able to make their own decisions.
  3. Just because an individual makes what might be seen as an unwise decision, they should not be treated as lacking capacity to make that decision.
  4. Anything done or any decision made on behalf of a person who lacks capacity must be done in their best interests.
  5. Anything done for or on behalf of a person who lacks capacity should be the least restrictive of their basic rights and freedoms.

In May 2013 the House of Lords appointed a Select Committee to consider and report on the MCA and to question whether the law is working. 

The committee heard from a wide range of services across the country, including all public services, health care, social care, carers’ networks, legal and human rights.

The report (Mental Capacity Act 2005: post-legislative scrutiny), published in March 2014, found that those involved in treating and caring for vulnerable adults are failing to implement the Act in the correct way. This is due mainly to the fact that they do not know about the Act or, despite the legal obligation on professionals to comply with it, the Act is misunderstood and treated like an optional add-on to treatment and care interventions.

The committee found the MCA to be an important piece of legislation which if implemented correctly, has an empowering ethos. The committee made a number of recommendations in order to address the failings. The two main recommendations made are:

  • That an independent body is given responsibility for monitoring the use of the MCA and for raising awareness and understanding of it by professionals.
  • That the deprivation of liberty safeguards are scrapped and replaced by an alternative that is easier to understand and to implement, and compatible in style and ethos with the MCA.

Other key recommendations from the committee include:

  • Improving training of frontline health and social care professionals
  • Ensuring access to legal aid for people who lack capacity so that they can have access to the Court of Protection to challenge decisions made on their behalf by professionals
  • Making independent mental capacity advocates (IMCAs) more widely available, so that vulnerable adults' lives are represented
  • Poor understanding of advance decision-making to be addressed widely

The MCA came into force in October 2007. The CQC in its recent reports has made it clear that the widespread lack of understanding of the basic principles of the MCA by health and social care professionals is no longer acceptable. All health and social care staff must be aware of their responsibilities under the Act. Training plays a small part to this. It is important that all staff working with vulnerable adults take responsibility for keeping their knowledge up to date with the wide range of resources available to them. All health and social care staff have a responsibility to:

  • Have regard to the guidance within the MCA Code of Practice
  • Set in practice the first three principles of the MCA prior to assessing capacity
  • Assess capacity in accordance with the MCA
  • Set in practice the last two principles of the MCA and follow the best interests process in accordance with the Act, if the person is assessed as lacking capacity
  • Ensure that the views of the person and their significant others are considered
  • Encourage patients/service users with capacity to plan ahead for a time when they may lack capacity, by making advance decisions to refuse treatment/advance statements of wishes and feelings/lasting powers of attorney
  • Ensure that the IMCA service is consulted where necessary
  • Follow the relevant Trust policies
  • Remember that MCA is law and cannot be negotiated

The Trust's Mental Health Law Department will continue to monitor the use of the MCA and be available for support, guidance and advice.