After relatively little fanfare, some of the provisions of the Mental Capacity Act 2005 ("the Act") came into force on 1st April 2007. The majority of the Act will come into force on 1st October 2007. There is a lengthy Code of Practice which explains how the Act should be applied.

Regrettably this article is long and unexciting – however it is still significantly less long than the Code of Practice. My hope is that it will be a useful summary for practitioners who feel they should be aware of the Act’s contents but don’t want to spend a whole day reading the Act and the Code of Practice.

Part 1 of this article will summarise the Act’s basic principles and consider what the Act means for patients and hospitals. Part 2 will consider the effect of the changes to the Court of Protection for those representing patients.

The context of the Act

The Act provides a blueprint of how we should deal with people (aged over 16) who are unable to make a decision for themselves in relation to a particular matter at a particular time because of an impairment of, or a disturbance in the functioning of their mind or brain. This fills a lacuna in the current law.

The existing Court of Protection is responsible for supervising the financial affairs of those people who do not have capacity to manage their own financial affairs. The Court of Protection appoints Receivers who are given the authority to make financial decisions for those they represent. However, at present, nobody has the authority to make health and welfare decisions for people who do not have the capacity to make their own decisions. Those working with people without capacity, including clinicians, at present have to ask the Family Division of the High Court to use its inherent jurisdiction and make a declaration that a proposed course of action is lawful. In such proceedings the Family Division Judge considers the best interests of the person in question.

From October 2007, the new Court of Protection will be able to appoint Deputies who can be authorised to make health and welfare decisions, as well as financial decisions for those who do not have capacity to make the decision themselves. Certain other people, including healthcare professionals and carers, who have to make decisions on behalf of adults without capacity in the course of caring for them or treating them will be protected from legal liability as long as they have followed the process set out in the Act.

Decisions taken under the Act could be decisions about day-to-day matters or decisions about life-changing events. Nothing in the Act permits a decision to be made on someone else’s behalf on marriage, consent to sexual relations, divorce, adoption, discharge of parental responsibility for matters other than property and consent under the Human Fertilisation and Embryology Act 1990.

The basic principles – sections 1-4

Section 1 of the Act sets out the five statutory principles which underlie it.

  • A person must be assumed to have capacity unless it is established that he lacks capacity.
  • He must not be treated as being unable to make a decision unless all practical steps to help him to do so have been taken without success.
  • A person is not to be treated as lacking capacity merely because he makes an unwise decision.
  • Anyone making a decision under the Act on behalf of someone who lacks capacity must do so in that person’s best interests.
  • Anyone making a decision under the Act on behalf of someone who lacks capacity must do so in a way which is the least restrictive of that person’s rights and freedoms of action.

Sections 2 and 3 set out the requirements for assessing whether someone lacks capacity. The requirements are consistent with the existing common-law authorities. Capacity is both time-specific and decision-specific. There is a diagnostic threshold in that the alleged incapacity must be due to a temporary or permanent impairment of, or disturbance in the functioning of, the mind or brain. Then there is a functional test: can a person understand the relevant information, retain it for long enough to make the decision, use or weigh that information as part of the decision-making process and then communicate that decision in some way or another? The issue is determined on the balance of probabilities.

Section 4 sets out the factors to be considered in determining whether a decision is in a person’s best interests. People who lack capacity must not be the subject of discrimination. Particular regard is to be had to the person’s past and present wishes, his beliefs and values and other factors he would have been likely to consider. If practicable and appropriate, a named person, a carer or a court-appointed deputy should be consulted.

What does the Act mean for patients and hospitals?

Section 5 states that those caring for or treating people who may lack capacity will not incur liability for acting without consent if (1) they take reasonable steps to establish whether the patient lacks capacity and (2) they act in the belief that the patient lacks capacity and that a particular act will be in the patient’s best interests. However their act must be necessary to prevent harm to the patient and must be a proportionate response to the likelihood of the patient suffering harm and the seriousness of that harm. Section 5 does not affect any civil liability owed to the patient in negligence.

Where a decision involves the provision of medical treatment, the doctor or other member of the healthcare staff responsible for carrying out the particular treatment is the decision-maker under the Act. It is that the doctor or member of the healthcare staff who is responsible for ensuring that the blueprint set out in the Act is followed.

There is now a greater onus on those working with, treating or caring for people who may lack capacity to give such people every opportunity and assistance to enable them to make their own decisions. This could mean involving someone’s family, friends or carers to support the person or to help the decision-maker understand, for example, how that person communicates, how to help the person understand information or whether that person is more alert at a particular time of day. Decision-makers will need to be able to demonstrate that they have complied with their obligations under sections 1-5, especially where the issue of capacity is finely balanced.

When considering whether an act is in someone’s best interests the decision-maker should not make a decision based on what they would decide in that situation. The decision-maker has to take into account the person’s wishes, beliefs and values. However, whilst the consideration of such factors might lead one to conclude that the aim is to make the decision that the person would have made themselves had they been able to, the Code is clear that the final decision must be based entirely on what is in a person’s best interests. Accordingly the assessment of best interests is an objective assessment with the factors listed in section 4 forming part of a checklist.

Applying the process in the Act

In non-emergency situations, in order to be protected from liability, it will be necessary for the healthcare professional taking the decision to:

  • have taken all practicable steps to enable someone to make a decision themselves;
  • have established whether there is a donee of a lasting power of attorney or a court-appointed deputy with authority to make the necessary decision;
  • have considered the two-stage capacity test;
  • have taken reasonable steps to establish whether the patient lacks capacity (with a multi-disciplinary team if appropriate) and recorded the assessment in the patient’s clinical notes;
  • have considered whether it would be appropriate to defer the decision where there is a chance that someone will regain capacity to make the decision themselves;
  • only act without consent where
    • they reasonably believe the patient lacks capacity; and
    • they believe that the act in question would be in the patient’s best interests
    • having considered the wishes of the patient, the patient’s beliefs and values, other relevant factors and having consulted with the relevant people, and recorded how the decision was reached, the reasons, who was consulted and the factors taken into account;
    • they are acting in the least restrictive way possible.

Emergency action

A healthcare professional is very unlikely to be liable for emergency action taken to save a patient’s life or to prevent a serious deterioration in condition. However the Code says that even in such circumstances the healthcare professional should try to communicate with the person and keep them informed of what is happening.

Conflict with a Deputy or a donee of a Lasting Power of Attorney

The Act does not authorise someone to do an act which conflicts with a decision, within the scope of his authority, of a donee of a lasting power of attorney or a Deputy, unless it is to provide life-sustaining treatment or to prevent a serious deterioration in a patient’s condition. Where there is a conflict, and the hospital considers that the Deputy is not acting in a patient’s best interests, it is likely to be necessary to refer the case to the Court of Protection.

Advance decisions

Healthcare professionals must respect an applicable valid advance decision by a patient which applies to proposed treatment, if they are aware of that advance decision. Where an advance decision relates to refusing life-sustaining treatment, it must be documented, signed and witnessed. The more obviously that it applies to a particular situation, the greater the likelihood that it will be held to be valid and applicable. Doctors will not be liable for failing to follow a person’s advance decision if they did not know of its existence.

Life sustaining treatment

Where a healthcare professional needs to decide whether to give life-sustaining treatment, specific considerations apply. The fundamental rule is that anyone deciding whether to consent to or refuse life-sustaining treatment must not be motivated by a desire to bring about the person’s death. It is up to the healthcare professional providing treatment to assess whether the treatment is life-sustaining. All reasonable steps which are in the person’s best interests should be taken to prolong their life. Reference should be made to any professional guidance. The decision-maker must consider the range of treatment options available to work out what would be in the person’s best interests. If the doctor’s assessment is disputed and there is no other way of resolving the dispute, the Court of Protection may be asked to decide what is in the person’s best interests.

Where a placement will involve deprivation of liberty

Where placing someone in a hospital or care home might deprive that person of their liberty, the Court of Protection would have to decide it was in the person’s best interests or the person would have to meet the criteria for detention under the Mental Health Act 1983.

Decisions requiring Court of Protection authority

Unless someone has made a valid advance directive to refuse the proposed treatment or made a Lasting Power of Attorney appointing an attorney to make such healthcare decisions for them, only the Court of Protection can make a decision about:

  • the proposed withholding or withdrawal of artificial nutrition and hydration from a person in a persistent vegative state;
  • whether a person should donate an organ or bone marrow to another person;
  • the non-therapeutic sterilisation of a person who lacks capacity to consent;
  • cases whether there is a dispute about whether a particular treatment will be in a person’s best interests.

Referral to an Independent Mental Capacity Advocate

Where a person without capacity has no-one willing or able to support them other than paid staff, an Independent Mental Capacity Advocate (IMCA) must be instructed by the NHS body when

  • an NHS body is proposing to provide, withhold or stop serious medical treatment
  • an NHS body or local authority is proposing to arrange accommodation in hospital for longer than 28 days or accommodation in a care home for longer than 8 weeks.

The IMCA’s role is to support and represent the person who lacks capacity and therefore they have a right to see the relevant healthcare and social care records. Information or reports provided by an IMCA must be taken into account by the decision-maker as part of the process of working out whether a proposed decision is in the person’s best interests.

Serious medical treatment is defined as treatment which involves giving new treatment, stopping treatment that has already started or withholding treatment that could be offered in circumstances where a single treatment is proposed but there is a fine balance between the likely benefits and burdens, a decision between a choice of treatments is finely balanced or what is proposed is likely to have serious consequences for the patient.

Provisions in force from 1st April 2007

From 1st April 2007, section 44 of the Act creates a criminal offence, triable either way, when a person who lacks capacity is ill-treated or wilfully neglected by his carer, his donee of a lasting power of attorney or his court-appointed deputy.

The Code of Practice which accompanies the Act provides guidance to anyone who is working with or caring for adults who may lack capacity to make particular decisions. Certain categories of people, including healthcare staff, are legally required to have regard to the Code and will be expected to give good reasons where they have departed from the Code. This Code of Practice must be followed from 1st April 2007.

The IMCA service is effective from 1st April 2007 and NHS bodies and local authorities are required, in the prescribed circumstances, to instruct an IMCA for an adult without capacity who does not have support from friends or family.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.