An Introduction to the Mental Capacity Act

& Palliative Care

PRESENTATION 1
INTRODUCTION TO THE MCA

SLIDE 1

Welcome to the first of four presentations introducing the Mental Capacity Act and Palliative Care.

SLIDE 2: AIMS OF THE PRESENTATIONS

The purpose of this set of presentations is to introduce you to the Mental Capacity Act (or “MCA”),
to explain what the purpose of this legislation is and what the Act actually says, and to identify
ways in which the Act will have an impact on palliative and end of life care.

More specifically, they look at the effect that the Act has on the ways that people with impaired
mental capacity make decisions and exercise choice about their care and treatment, the need to
support them, and the ways in which decisions are made on their behalf should they be unable to
make them for themselves.

Before going any further, wherever we use “he” or “him” or “her” in the presentations, that is only in
order to keep the presentations succinct. There is no intention to exclude anyone.

SLIDE 3: EXAMPLES OF PEOPLE FOR WHOM CAPACITY CAN BE AN ISSUE

First of all, it might be helpful to think about examples of people who might either have impaired
capacity or lack capacity altogether in relation to a particular decision.

These include:

• People living with dementia

• People living with learning disability
• Older people experiencing frailty
• People who are experiencing delirium or confusion
• People with fluctuating capacity or consciousness
• People on medication which causes persistent, transient or fluctuating cognitive impairment
• People who are imminently dying and who no longer have full mental capacity
• People who are unconscious

Those who work in hospices, in care homes, in hospitals or in the community, who provide
palliative care as part of their work, provide care and support for people like these all the time.

So, these are examples of the sort of people whom the Act is intended to help. Keep them in mind
when you are working through these presentations.

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SLIDE 4: MCA OBJECTIVES

The Act has three broad objectives:

1. To support people with impaired capacity so that they can make decisions for themselves
2. Where they cannot take a particular decision for themselves, to provide them with a
protective framework for decisions that are made about them; and
3. To provide a framework for those who have to make and implement decisions in relation
to people who do not have the capacity to make those decisions for themselves

It is important to keep the first of these objectives in mind at all times. Although much of the Act is
concerned with what happens if it has been determined that an individual does not have the
capacity to make a particular decision for himself, the Act is also intended to ensure that people
with impaired but residual capacity receive all appropriate support so that, wherever possible, they
can make their own decisions for themselves about the care and treatment that they receive.

SLIDE 5: MCA OBJECTIVES 2

The Act fills a legal vacuum. Prior to the Act there was no legal framework governing the way in
which decisions were made about the care or treatment of people who lack the capacity to make
those decisions for themselves. That means that there was no framework to protect or guide either
those people on whose behalf the decisions were made, or those people caring for them who have
to make the decisions.

For example, although it was widely assumed that “next of kin” had rights and legal status, they did
not. The Mental Capacity Act changed that, and it means that next of kin now do have legal status
in that they must be consulted about their relative’s best interests, if it is practicable to do so. We
will look at this in more detail later.

SLIDE 6: HOW OLD DO YOU HAVE TO BE?

The Act has very broad application. It applies to every decision made by or on behalf of an adult
aged 16 years or over with impaired capacity. The only exceptions to age are that you have to be
aged 18 or over to give a Lasting Power of Attorney to somebody or to make an advance decision
to refuse treatment. We will find out more about those later. It covers a person’s money, property,
place of residence, treatment and care. It applies to health and social care. It applies in every
setting. If you work with patients or carers who have palliative care needs, it will certainly apply to
you.

SLIDE 7: FIVE UNDERLYING PRINCIPLES

The Act is based on 5 underlying principles. These are set out in section 1 of the Act.

They are:

1. A presumption of capacity
There is an assumption in favour of capacity. Everybody has the right to make his own
decisions for himself, and so a person must be assumed to have capacity, unless it is
established that he lacks capacity to make the decision in question.

2. Individuals should be supported where possible so that they can make their own decisions
A person must not be treated as being unable to make a decision unless all practicable steps
to help him to do so have been taken, without success.

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3. People have the right to make decisions which may seem eccentric or unwise to other people
A person is not to be treated as unable to make a decision merely because he makes an
unwise decision.

4. Best interests
Acts done or decisions made on behalf of a person established to be lacking capacity must be
in his best interests. The Act refers to a person who has been assessed as lacking capacity to
make a particular decision as “P”, and we will use that shorthand in these presentations.

5. People’s rights and freedoms must be restricted as little as possible

Before doing an act or taking a decision on behalf of P (that is, a person who does not have
capacity to take that decision himself) you must consider whether the purpose underlying that
act or decision can be achieved in a way that is less restrictive of his rights or freedom of action.

The provision about the right to make eccentric decisions is an important one which illustrates well
one of the key issues that should be understood about the Act.

When the government drafted the Act it was concerned about the relationship between the state
and the individual, and the need to protect vulnerable individuals against state interference or even
abuse. Deciding without proper justification that somebody lacks the capacity to make a decision
for himself is one way in which the state can interfere in an individual’s life.

Instead the Act is intended to ensure that each individual is properly assessed and that superficial
judgements are not made about them. The mere fact that somebody behaves in a way that others
might find odd or eccentric does not of itself prove that he or she lacks capacity. Each of us has a
right to make our own choices and decisions, even though others might consider them eccentric or
unwise.

These five principles are very important. Understanding them will help you develop an
understanding of the Act. If you are ever uncertain about what to do under the Act, applying these
principles to the situation in which you are in may help you find a solution.

SLIDE 8: A NEW CULTURE OF CARE

One of the primary intentions behind the Mental Capacity Act is to introduce a new culture of care.
What does that mean?

The Government, and those (particularly those working with mental health charities) who
campaigned for the Act over many years, see the Act as an important expansion of the human
rights of people with impaired mental capacity.

The Act is designed to bring an end to paternalistic attitudes which can result either in over-speedy
assumptions that a person lacks capacity or the making of superficial judgements about what are a
person’s best interests.

Importantly, the Act is also intended to ensure that people who lack capacity actually receive
treatment, if it is decided that such treatment is in their best interests, and that they are not
discriminated against because they lack capacity. If you have decided that a particular treatment is
in somebody’s best interests, you must find a way to make sure that they receive it, even if they
lack the capacity to consent to it.

With that in mind, let’s look at some points in more detail:

First of all:

• Lack of capacity is a determination of last resort; and

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 • Maximising capacity is the first priority.

These reflect the first 2 underlying principles of the Act– that there is a presumption in favour of
capacity, and that individuals should be supported where possible so that they can make their own
decisions. That means that everything possible must be done to support people.

You will also need to consider what methods you use to communicate with your patient. We will
look at this in a little more detail in the second presentation.

And, if you decide that they do not have the capacity to make a particular decision for themselves,
you will need to justify that in the notes – you will have to record the reasons why you reached that
conclusion.

Finally, as has already been explained, if you reach the conclusion that a particular course of
treatment is in the patient’s best interests, you need to make sure they receive that treatment.
There are many recorded cases of patients with impaired capacity not getting the treatment that
was clearly in their best interests. The Act is intended to bring an end to that.

SLIDE 9: THE CODE OF PRACTICE

The Mental Capacity Act is accompanied by a statutory Code of Practice. All paid and professional
carers are under a statutory duty to have regard to the Code of Practice. That does not mean that
you have to follow the Code of Practice in all circumstances. It does mean that, if you decide not to
follow it, you will need to be able to justify your reasons for doing so.

Although lay and informal carers do not have a statutory duty to take account of the Code of
Practice, it is still there to guide them. If they do not follow the code then, like professionals, they
will need to explain why they decided to do that.

A link to the Code of Practice can be found on the e-learning website under “Useful Links”.

SLIDE 10: NEW INSTITUTIONS

The Mental Capacity Act also introduces a new Office of the Public Guardian and a new Court of
Protection.

The role of the Court of Protection is to decide disputes about capacity and best interests, and to
remove proxy-decision makers who fail to carry out their duties. Further details about its role can
be found in Chapter 8 of the Code of Practice.

The role of the Office of the Public Guardian will be to oversee proxy decision-makers appointed
under the MCA either as attorneys or deputies. They can also appoint Court of Protection visitors
to advise the Court of Protection. Further details about its role can be found in Chapter 14 of the
Code of Practice.