MENTAL CAPACITY ACT 2005
The latest and quite possibly most controversial piece of legislation that relates to people with learning disabilities is the Mental Capacity Act 2005. The Mental Incapacity Bill, as it was originally known, received Royal Assent in April 2005 and is expected to come into force in England and Wales in 2007. (Scotland has its own Adults with Incapacity Act 2000.) When it does come into force, it will affect everyone over the age of 16 years whose mental capacity is in doubt, and those who care for them. Mental capacity, in relation to the legislation, refers to the ability of the individual to make a decision about some aspect of his/her life. Although the act is not limited to specific conditions, mental capacity can be affected by many conditions, such as dementia, stroke or mental illness; this legislation will have major implications for a substantial number of people with learning disabilities and their carers. In brief, the stated aim of the act is to provide a statutory framework that will empower and protect vulnerable people who are unable to make their own decisions, and make clear who can take decisions on their behalf and in what situation(s). Individual care plans will have to conform to the principles of the act, demonstrating that service users have either been involved in decisions about their care, or that they have been assessed as lacking the capacity to do so and that the decisions made are in their best interests. In order to ensure that vulnerable people are protected and empowered, the entire act is underpinned by five key principles. Sections 1–4 of the act best illustrate those key principles and will be discussed here. However, readers are advised that there are many more sections to the act (68 in total) which may be of interest to them.
SECTION 1: KEY PRINCIPLES
Part I, section 1 introduces the five key principles that apply throughout the act. These principles are:
(1) A person must be assumed to have capacity unless it is established that he lacks capacity.
(2) A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
(3) A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
(4) An act done or decision made under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.
(5) Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.
SECTION 2: PEOPLE WHO LACK CAPACITY
It can be seen from the very first principle that, similar to the presumption of innocence that underpins criminal legislation in the United Kingdom, it is not the responsibility of individuals to prove their mental capacity but rather that others must prove their incapacity. Section 2 of the act identifies those to whom the act applies and describes people who lack capacity in the following terms:
(1) For the purposes of this act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.
(2) It does not matter whether the impairment or disturbance is permanent or temporary.
(3) A lack of capacity cannot be established merely by reference to
(a) a person’s age or appearance, or
(b) a condition of his, or an aspect of his behavior, which might lead others to make unjustified assumptions about his capacity.
In effect, this means that the assessment of an individual’s mental capacity is time- and issue-specific. The capacity of the individual to make a decision must be assessed in relation to each issue and at the time at which the decision needs to be made. For example, it cannot be assumed that a person with a learning disability lacks the capacity to make a decision on his/her current or future medical treatment, or any other aspect of his/her life, simply because at some point in the past, she or he was assessed as lacking the mental capacity to make a decision about where she or he wished to live. Nor can an individual be deemed to be incapable of making a decision simply because she or he is elderly or has been diagnosed with a condition such as a learning disability.
SECTION 3: INABILITY TO MAKE DECISIONS
Section 3 of the act sets out the criteria by which a person may be deemed to lack the mental capacity to make a decision. An individual is said to be unable to make a decision for him/herself if s/he is unable:
(a) to understand the information relevant to the decision,
(b) to retain that information,
(c) to use or weigh that information as part of the process of making the decision, or
(d) to communicate his decision (whether by talking, using sign language or any other means).
However, failure alone to understand the relevant information is not sufficient to demonstrate a lack of mental capacity. Information, especially of a legal or medical nature, can very often be presented in a language that is confusing and unintelligible to all but those in the respective profession. The act therefore requires that prior to ascertaining capacity, all information relevant to the decision should be given to the individual in a way that is appropriate to his/her circumstances, such as the use of simple language for people with learning disabilities, visual aids for people with auditory disabilities and translations for those who do not have English as their first language. It is therefore not necessary for an individual to have an in-depth technical knowledge of the issue – merely an understanding of the relevant concepts. Nor does the fact that a person is only able to retain the relevant information for a short period prevent his/her being regarded as able to make the decision. Even if an individual forgets all the information that informed his/her decision immediately after making that decision, s/he is still considered to be capable.
At this point, it is worth reiterating Key Point 3, contained in section 1 of the act: ‘A person is not to be treated as unable to make a decision merely because he makes an unwise decision.’ An eccentric decision that flies in the face of logic or fails to comply with the recommendation of professionals does not, in itself, constitute an absence of mental capacity. People can, and often do, make unwise decisions. People with learning disabilities have as much right to be ‘wrong’ as everyone else.
SECTION 4: BEST INTERESTS
Having ascertained that an individual lacks the capacity to make a decision in relation to a specific issue or aspect of his/her life, any decision taken on his/her behalf must be in his/her best interests. This is a term that is often used in the caring professions, with little attempt to defi ne it. The act, however, provides a checklist of factors that decision makers must work through in deciding what is in the individual’s best interest. This section of the act is one of the most comprehensive, as making decisions on somebody else’s behalf is fraught with difficulty and open to abuse. In determining what is in a person’s best interests, the person making the determination must not make it merely on the basis of:
(1) (a) the person’s age or appearance, or
(b) a condition of his, or an aspect of his behavior, which might lead others to make unjustified assumptions about what might be in his best interests.
(2) The person making the determination must consider all the relevant circumstances and, in particular, take the following steps.
(3) He must consider
(a) whether it is likely that the person will at some time have capacity in relation to the matter in question, and
(b) if it appears likely that he will, when that is likely to be.
(4) He must, so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him.
(5) Where the determination relates to life-sustaining treatment he must not, in considering whether the treatment is in the best interests of the person concerned, be motivated by a desire to bring about his death.
(6) He must consider, so far as is reasonably ascertainable
(a) the person’s past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity),
(b) the beliefs and values that would be likely to influence his decision if he had capacity, and
(c) the other factors that he would be likely to consider if he were able to do so.
(7) He must take into account, if it is practicable and appropriate to consult them, the views of (a) anyone named by the person as someone to be consulted on the matter in question or on matters of that kind,
(b) anyone engaged in caring for the person or interested in his welfare,
(c) any donee of a lasting power of attorney granted by the person, and
(d) any deputy appointed for the person by the court, as to what would be in the person’s best interests and, in particular, as to the matters mentioned in subsection (6).
Section 4, subsections (1)–(7) are not only intended to ensure that the ‘best interests’ of those assessed as lacking mental capacity are served, but that their wishes are also respected and that any decision taken on their behalf will be as close as possible to the decision that they would have made if able to do so. It should be noted, however, that there are a number of areas in which carers are still prohibited from making a decision on another’s behalf, regardless of any incapacity. Even if a carer can demonstrate that it is in the best interests and compatible with the wishes of the individual, decisions about marriage, private relationships, adoption or voting cannot be made on behalf of another person.
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