Page updated: 13 Sep 2011
Mental capacity
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Trafford's mental capacity lead is Michel Le-Straad, Designated Nurse for Vulnerable Adults.
Trafford’s mental capacity co-ordinator is Sue Whitfield (funded until November 2011).
If you are looking for the Mental Capacity & Best Interest Decision Forms, click here or use the useful documents tab.
The Mental Capacity Act, 2005
The Mental Capacity Act is designed to protect people who can't make decisions for themselves or lack the mental capacity to do so. This could be due to a mental health condition, a severe learning difficulty, a brain injury, a stroke or unconsciousness due to an anaesthetic or sudden accident.
The Act's purpose is:
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To allow adults to make as many decisions as they can for themselves.
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To enable adults to make advance decisions about whether they would like future medical treatment.
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To allow adults to appoint, in advance of losing mental capacity, another person to make decisions about personal welfare or property on their behalf at a future date.
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To allow decisions concerning personal welfare or property and affairs to be made in the best interests of adults when they have not made any future plans and cannot make a decision at the time.
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To ensure an NHS body or local authority will appoint an independent mental capacity advocate to support someone who cannot make a decision about serious medical treatment, or about hospital, care home or residential accommodation, when there are no family or friends to be consulted.
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To provide protection against legal liability for carers who have honestly and reasonably sought to act in the person’s best interests.
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To provide clarity and safeguards around research in relation to those who lack capacity.
Under the Mental Capacity Act a person is presumed to make their own decisions 'unless all practical steps to help him (or her) to make a decision have been taken without success'.
Every person should be presumed to be able to make their own decisions. You can only take a decision for someone else if all practical steps to help them to make a decision have been taken without success. For example, someone might have the capacity to walk into a shop and buy a CD but not to go into an estate agent and purchase a property.
Incapacity is not based on the ability to make a wise or sensible decision. You can find out more about the capacity here.
How to decide if a person lacks capacity to make decisions
If you are concerned about someone’s health or wellbeing, you may need to know if they are capable of making their own decisions. Some people might need someone else to make decisions for them. You can find out here how someone’s mental capacity can be assessed and how you can help them make decisions.
When people lack mental capacity
Every day people make decisions about lots of things in their lives from what to wear or what to eat to making decisions about medical treatment or financial matters. The ability to make decisions is called mental capacity. Some people have difficulties making some decisions either all or some of the time. This could be because of a temporary condition such as infection, illness, accident or the influence of alcohol or drugs or they may have a learning disability, dementia, a mental health problem, or it could be the result of a head injury or a stroke.
The Mental Capacity Act 2005 sets out the legal rights for supporting and protecting vulnerable people who are not able to make their own decisions. It makes clear who can take decisions, in which situations, and how they should go about this. It also enables people to plan ahead for a time when they may lose capacity.
How mental capacity is assessed
An assessment of someone’s mental capacity should be made at the time a particular decision needs to be made, usually by the person who needs the decision to be made. It is not usually necessary to undertake a formal assessment of capacity for what people eat or what people wear.
Any assessment starts with the assumption that the person has the capacity to make the decision in question.
An assessment must never be based simply on their age, their appearance, assumptions about their condition, or any aspect of their behaviour.
A solicitor can decide if someone is capable of making decisions or understanding things such as a will or a Lasting Power of Attorney. If in doubt, they can get an opinion from a doctor or another appropriate professional.
The Court of Protection has power to decide whether someone has mental capacity or not if there is a disagreement.
How to tell if someone can make a decision
There are several things you should consider when assessing if a person can make a decision:
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If the person understands what decision they need to make and why they need to make it
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If the person understands what might happen if they do or do not make this decision
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If the person can understand and weigh up the information relevant to this decision
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If the person can communicate their decision (by talking, using sign language or any other means)
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If the person can communicate with help from a professional (such as a speech and language therapist)
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If there is a need for a more thorough assessment (perhaps by involving a doctor or other professional expert)
You must not treat the person as unable to make a decision just because they make decision you don’t agree with.
The Mental Capacity Act Code of Practice gives more detailed guidance on how to assess someone’s ability to make decisions.
Download 'the Mental Capacity Act 2005 Code of Practice' (PDF, 1131K)
Help with PDF files
If you need to make decisions for someone else
Any decision you make for someone who lacks capacity must be made in that person's best interests.
When working out what is in someone's best interests there are some common things that you must always consider:
- All relevant circumstances should be considered
- You should make every effort to encourage and enable the person who lacks capacity to take part in making the decision
- If there is a chance that the person will regain the capacity to make a particular decision in the future
- The person's past and present wishes and feelings, beliefs and values
- The views of other people who are close to the person lacking capacity, as well as the views of an attorney or deputy
There are two main ways you can make decisions for someone else: as someone’s attorney under an Enduring or Lasting Power of Attorney agreement, and being a deputy appointed by the Court of Protection
These are legal arrangements and can’t fulfil these roles without agreement from the Court of Protection or the Office of the Public Guardian.
Each of these roles has responsibilities and duties you can carry out on behalf of someone else.
What is a Lasting Power of Attorney?
Becoming a deputy and your responsibilities
To determine incapacity you will need to consider whether the person you're looking after is able to understand the particular issue that they're making a decision about. You need to consider if they have an impairment or disturbance in the functioning of the mind or brain, and an inability to make decisions.
A person is unable to make a decision if they cannot:
- Understand the information relevant to the decision
- Retain that information
- Use or weigh that information as part of the process of making the decision
- Communicate the decision
Making decisions for someone
If, having taken all practical steps to assist someone, it is concluded that a decision should be made for them, that decision must be made in that person’s best interests. You must also consider whether there's another way of making the decision which might not affect the person’s rights and freedom of action as much (known as the 'least restrictive alternative' principle).
Best interests
The Mental Capacity Act sets out a checklist of things to consider when deciding what's in a person’s best interests. You should:
- Not make assumptions on the basis of age, appearance, condition or behaviour.
- Consider all the relevant circumstances.
- Consider whether or when the person will have capacity to make the decision.
- Support the person’s participation in any acts or decisions made for them.
- Not make a decision about life-sustaining treatment “motivated by a desire to bring about his (or her) death”.
- Consider the person’s expressed wishes and feelings, beliefs and values.
- Take into account the views of others with an interest in the person’s welfare, their carers and those appointed to act on their behalf.
Find out more on applying the Mental Capacity Act by visitng the applying the mental capacity act page on this site.
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