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A guide to the Mental Capacity Act 2005

Andrew Alonzi
Solicitor and Senior Lecturer in Law Nottingham Law School

Janet Sheard
Chief Operating Officer and Executive Nurse, Nottingham City PCT

Michelle Bateman
Assistant Director (Nursing and Governance) Nottinghamshire Community Health

A new guide has been designed to help adult community healthcare staff quickly familiarise themselves with the key requirements of the Mental Capacity Act 2005 and the Code of Practice


The Guidance for Adult Community Services Staff on the Mental Capacity Act 2005 is the culmination of research carried out by Nottingham Law School to assess the impact of the Mental Capacity Act 2005 (MCA) on the work of adult community services health care staff.1,2 The research, which took the form of a questionnaire-based study, was funded by the Social Care Institute for Excellence (SCIE) (see www.scie.org.uk) and involved staff from Nottingham City Primary Care Trust (PCT) and Nottinghamshire County Teaching PCT.

The aim of the guidance is to help busy practitioners quickly familiarise themselves with those parts of the MCA and the Code of Practice they are most likely to encounter in practice.3 It is practitioner-focused and covers all those areas that staff who took part in the research study indicated they would like more practical guidance on.  

The guidance
As well as providing clear, comprehensive instruction, the guidance contains five practical checklists and three nursing case studies. The checklists help staff to quickly identify criteria they should apply and the questions they should ask when working with adults who may lack, or have reduced, capacity to make a specific decision. The case studies help staff to see how to apply the MCA and the Code in practice. All of the topics outlined below appear in the guidance.

The guidance has also been developed with staff training in mind and will complement local training programmes on the MCA. NHS Nottinghamshire County and Nottinghamshire Community Health, an arm's length management organisation of NHS Nottinghamshire County intend to use the guidance both to support staff training and as a resource that staff can use alongside the Code to obtain immediate, clear information.

Duty to "have regard to" the Code
Staff are under a legal obligation to have regard to the Code when treating or caring for adults who may lack or have reduced capacity. The Code is evidence-based, so staff must record how they have taken the Code into account in practice. This is also needed should their decision be reviewed or challenged in the future.

"Lack of capacity" refers to a person's inability to make a specific decision at the time the decision has to be made (including consenting to care or treatment). A person may lack capacity due to a range of causes encountered by adult community services staff (such as dementia, significant learning disabilities, brain injury, the effects of a stroke, delirium and the effects of drug or alcohol use).

The guidance explains when staff should carry out a formal, recorded assessment of a person's capacity. Staff should assess and clearly record a person's capacity to make any decision about their healthcare or treatment (for example, providing nursing care, carrying out diagnostic examinations and tests and giving medication). Lack of capacity may be permanent or temporary; but if it is temporary and the decision can be postponed, staff should wait until the person regains the capacity to make the particular decision or consent to the act of healthcare or treatment proposed.

Five principles
Staff should always use the "five principles" as their starting point, and the guidance devotes a section to these.2,3 These are overarching principles. For example, staff should always start from the assumption that every person aged 16 years and over has the capacity to make their own decisions, unless it can be shown that they lack capacity (first principle).  

Help with decision-making
This is the first step.3 The guidance emphasises the need to work with the person who may lack, or have reduced, capacity; to support them to make their own decision (in this sense, restoring power to them). Only if all practicable steps have been taken to help and support a person who may lack capacity to make a specific decision, without success, should staff assess that person's capacity to make that decision at that specific time.

Assessing capacity
This is the second step. Staff need to be familiar with the two-stage test for assessing capacity.2,3
1. Does the person have an impairment of, or a disturbance in the functioning of, the mind or brain?
Put simply, this means there is an impairment of the person's mind or brain, or a disturbance that affects the way their mind or brain works (for example, caused by dementia, brain injury, the effects of a stroke, neurological disorder or physical or medical conditions that cause confusion, drowsiness or loss of consciousness).  If the answer is "no", the person has capacity and must consent to any treatment offered. If the answer is "yes", you must move onto the second stage.

2. Does the impairment mean that the person is unable to make a specific decision, at the time they need to?
A person is unable to make a specific decision at the time they need to if they cannot:

  • Understand relevant information about the decision.
  • Retain that information in their mind long enough to make the decision.
  • Use or weigh up that information as part of the decision-making process.
  • Communicate their decision by any means.

If the person lacks the ability in any one of these areas, they are treated as being unable to make a specific decision.
The decision and time-specific nature of the test is important. For example, if the person's lack of capacity is temporarily induced by the effects of drugs or alcohol, staff must consider whether the decision can be postponed until a time when the person is likely to have capacity to make it.
 
Best interests
This is the third step.2,3 The "best interests" principle (the fourth principle) is placed on a statutory footing. Staff must adhere to a number of factors (such as evidence of the person's beliefs and values) and to consult others (such as an attorney) when determining whether the decision or act proposed is in the best interest of the person who has been assessed as lacking capacity.

The guidance outlines limitations to the ability of staff to make a "best interests" decision for the person who lacks capacity – for example, where the person has already made a valid, applicable advance decision to refuse medical treatment or has appointed an attorney under a registered Personal Welfare Lasting Power of Attorney (PWLPA).

Independent Mental Capacity Advocate
A lot of work has gone into promoting the Independent Mental Capacity Advocate (IMCA) service among healthcare staff. The guidance outlines the circumstances in which an IMCA should be appointed, what an IMCA will do, what rights an IMCA has, and how to deal constructively with circumstances where an IMCA disagrees with or challenges your decision.3

Protection
When performing acts of healthcare or treatment for a person who lacks capacity, staff must be able to show (objectively, clearly recorded in the person's records) that they have taken all practicable and appropriate steps to help and support the person to make their own decision (without success), have properly applied the two-stage test for assessing capacity and must reasonable believe that the person lacks capacity and that the act proposed is in the person's best interests.

Advance decisions
The guidance differentiates an advance decision from a statement of wishes and feelings, and outlines the purpose and requirements of each.3 Remember that an advance decision need not be contained in a formal document and need only be expressed in the words of the person making it. Unless the advance decision is a refusal of life-sustaining treatment, it need not even be in writing. A refusal of life-sustaining treatment must be in writing, be signed by the person making it and witnessed, and must also contain the words "even if life is at risk".

The guidance tackles a difficult issue that staff encounter; namely, the relationship between an advance decision and a PWLPA, particularly where both purport to deal with the same type of treatment but have been made at different times. A clear approach is provided to help staff
with this.

Good record-keeping
Good record-keeping is at the heart of the MCA and the Code. It is vital that staff can demonstrate with clear, objective evidence that they have had regard to the Code if their decision is reviewed or challenged. The guidance uses checklists which distil the essence of good record-keeping under the Code in a way that staff will find easy to follow.

Confidentiality and challenges
The guidance outlines the principal requirements around confidentiality in the context of the MCA. It deals with the NHS Confidentiality Code of Practice;4 information IMCAs are entitled to request; the obligations around sharing information with others when assessing a person's capacity and determining best interests; and dealing appropriately with a request for confidential information by an attorney appointed under a registered Lasting Power of Attorney. We also explain how staff should deal with challenges to their assessment of a person's capacity or best interests decision.

Case study
Anna Southcott, aged 76, has dementia and lives in a residential care home. Anna is also asthmatic. Like many people with dementia, Anna's capacity fluctuates. The district nurse attends one day to administer flu vaccinations. Anna is able to communicate. 

Principles
The district nurse should assume that Anna has the capacity to decide whether to receive a flu vaccination, unless there is evidence to show that she lacks the capacity to do so. Even if the nurse has to help Anna to make the decision, this does not necessarily mean that she lacks the capacity to make it.

The nurse should not treat Anna as being unable to make the decision herself until all practicable steps to help and support her to make it have been taken without success (second principle). Only if this is the case should the nurse assess Anna's capacity to make the decision using the two-stage test. As Anna's capacity fluctuates, the district nurse should carefully consider whether the decision can be postponed until a time when Anna may have capacity to make the decision. The following assumes that it cannot.

Practice
Does Anna have an impairment of, or a disturbance in, the functioning of the mind or brain?

There must be an impairment of Anna's mind or brain, or some disturbance that affects the way her mind or brain works. Anna has dementia, so this part of the test is fulfilled.

Does the impairment or disturbance mean that Anna is unable to make a specific decision, at the specific time she needs to?
The impairment or disturbance must affect Anna's ability to make a specific decision at a specific time. 

We are told that Anna can communicate. The district nurse should decide on the balance of probabilities whether Anna is able to understand relevant information about the decision, retain that information in her mind long enough to make the decision herself, or use or weigh up that information as part of the decision-making process. If Anna cannot do any of these three things, she is treated as being unable to make the decision.

The district nurse decides that Anna lacks capacity to make a decision about receiving a flu vaccination and clearly records her assessment with reasons.

This case study appears in full in the guidance.

For information about the guidance or to request a copy, please contact Andrew Alonzi (andrew.alonzi@ntu.ac.uk). An electronic copy of the guidance can also be downloaded at: http://www.scie.org.uk/publications/misc/mca/index.asp

References
1. Nottingham Trent University. Guidance for Adult Community Services Staff on the Mental Capacity Act 2005. Available from: http://www.ntu.ac.uk/nls/file_uploads/64548.pdfhtml
2. Mental Capacity Act 2005. Available from: http://www.opsi.gov.uk/acts/acts2005/ukpga_20050009_en_1
3. Department for Constitutional Affairs. Mental Capacity Act 2005: Code of Practice. London: Stationery Office; 2005. Available from: http://www.opsi.gov.uk/acts/acts2005/related/ukpgacop_20050009_en.pdf
4. Department of Health. Confidentiality: NHS Code of Practice. London: DH; 2003. Available from: http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/Publicati...