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Mental Capacity Act (MCA)

The Mental Capacity Act 2005 is an important piece of law which seeks to ensure that people over the aged of 16, who may not be able to make decisions themselves about their life such as care and treatment receive the support to do so.  Where they are unable to make the decision, the Act sets out what should be considered, to make decisions on their behalf, known as their “best interests”.  The Mental Capacity Act applies to anyone working in health and social care.  They must be able to demonstrate how they applied the law to their decision making.

The five principles of the Mental Capacity Act: 

  1. Presumption of capacity unless proven otherwise.
  2. Provide all practical support needed to make the decision.
  3. Do not treat a person as lacking capacity just because they make an unwise decision.
  4. If you make a decision for someone who does not have capacity, it must be in their best interests.
  5. Treatment and care provided to someone who lacks capacity should be the least restrictive of ther basic rights and freedoms.

Lasting Power of Attorney (LPA)

You can grant someone the ability to make decisions on your behalf when in the future you lack the capacity to make the decision. This is called Lasting Power of Attorney (LPA). For an LPA to be valid, it must be made when you have the capacity to do so and must be registered with the Office of Public Guardian. Click here for more information.

Advanced decision

You can also make an advance decision (sometimes known as an advance decision to refuse treatment, an ADRT, or a living will) which is a legally binding decision that allows someone aged 18 or over, while still capable, to refuse specified medical treatment for a time in the future when they may lack capacity to consent to or refuse that treatment.

If the advance decision refuses life-sustaining treatment, it must:

  • be in writing, signed and witnessed,
  • state clearly that the decision applies even if life is at risk.

People who make an advance decision may wish to consider letting their family, friends and carers know about it.

An advance decision must be valid and applicable to current circumstances. If it is, it has the same effect as a decision made by a person with capacity – healthcare professionals must follow the decision.

Deprivation of Liberty Safeguards (DoLS)

Deprivation of Liberty Safeguards (DoLS) which is part of The Mental Capacity Act adds additional protection to those people unable to make their own decisions about their care and treatment in a care home or hospital, where that care is felt to be restrictive. The care provider must apply to the Local Authority for authorisation.

There are occasions when someone may need to be deprived of their liberty in their own home for which there is a separate process in place in which the best interest’s decision is made by the Court of Protection.

If you require further information, resources, or wish to speak to anyone about The Mental Capacity Act the ICB has a designated MCA Lead who can be contacted at: