The Mental Capacity Act 2005 (MCA) provides a framework to empower and protect people who may lack capacity to make some decisions for their care or living arrangements. Under the MCA, you are required to make an assessment of capacity, if there is any doubt that the person lacks the ability to make these decisions themselves. Ordinary day to day decisions are not included in the Act and a simple record in the care plan is all that is required.

Key Decisions are diﬀerent, they are significant decisions that go beyond a person’s daily routine. It requires the care home staﬀ to make a judgement when to undertake this assessment. The more serious the decision, the more formal the assessment of capacity needs to be. https://www.scie.org.uk/mca/practice/assessing-capacity

Summary Box – Quick guide

What does the Mental Capacity Act mean for care providers / workers? What actions are required.

Always assume the person has capacity. If this is in doubt make a formal
Always ask for consent, in any case, for giving any assistance or care. (If they say ‘no’ go back 10 mins later, for example).
Record these small daily decisions and discussions in the care plan.
Assessment of capacity is required for key decisions, when they are unable to make their own. Such as, medical treatments, dental care, changes to their living environment or large
Apply the 2 stage test for capacity. The diagnostic test and the functional
Use the forms MCA1 and 2 and Best Interest Decision form as a guide and tool for action https://www.scie.org.uk/files/mca/directory/mca-tailored-for-you/health/pan-london- commissioner-toolkit/croydon-primary-care-mca-form.docx

Prepare well for the Assessment, don’t go in ‘blind’. Use the forms to
Arrange a ‘Best Interests’ meeting with all the relevant
Use the checklist (below). Make sure the right people are included in the discussion and every effort is made to establish the person’s own wishes and
Use the balance sheet for more complex decisions, so you can weigh and record the
Make comprehensive and accurate records – they might become part of formal proceedings if they are

When and Who

Guidance for when to conduct an assessment and making a best interests decision is provided in the downloadable link below.

If mental capacity is in doubt then complete the forms. The person making the assessment is the professional responsible for their care. In a care home setting that would be the Registered Nurse or Social Worker but the entire staﬀ team must be trained in understanding the Act as they are involved in constant monitoring and assessment of clients’ mental capacity.

https://www.scie.org.uk/files/mca/directory/mca-tailored-for-you/health/pan-london- commissioner-toolkit/croydon-primary-care-mca-form.docx

5 Principles

There are five important principles everyone should follow when using the Act:

Start oﬀ by always thinking that the individual can make their own decision
Give all practicable support to enable the person to make their own decision. This might mean finding a diﬀerent time of day, if their ability fluctuates for example. Be aware that capacity can fluctuate, so these assessments need be regularly
Never say someone can’t make a decision just because someone else thinks it’s wrong or
When an individual can’t make their own decision someone has to make it in the best way for them
When someone makes a decision for an individual they must consider whether there is a less restrictive option, ie one that does not limit their rights or freedom more than

https://www.medicalprotection.org/uk/articles/assessing-capacity

The starting point – the principles of the presumption of capacity and respecting a person’s entitlement to make unwise decisions with capacity (principles 1 and 3 of the MCA) are the starting point for any capacity assessment.
Capacity is decision and time specific – saying that someone lacks capacity is meaningless. You must ask yourself, “what is the specific decision that needs to be made at this point in time?” If you don’t define this question before you start undertaking the assessment, the exercise will be pointless and may lead to the wrong
Preparation for capacity assessments – remember that a crucial step of assessing capacity is to prepare yourself for the assessment. Don’t go in with a blank
Take all practicable steps – you have to ask yourself if there is something that you can do which might mean that an individual would be able to make the decision for
Applying the test – the MCA test for capacity has two aspects: the diagnostic element (that is, is there an impairment of, or a disturbance in the functioning of, the mind or brain?) and the functional element (is the person unable to make a decision because of the impairment?). Being unable to make a decision means being unable to understand, retain or “use or weigh” information relevant to the decision, or to communicate their decision.

Another helpful version of the 5 points

(Community Care Inform Adults’ knowledge and practice hub on mental capacity and deprivation of liberty). https://www.communitycare.co.uk/2016/07/01/five-key-steps-assessing-capacity/

The Mandatory Checklist

Except in an emergency when there isn’t time, the MCA lays out a checklist of factors to be considered when you are working out a best interests decision for someone who lacks mental capacity.

These are things to check, to make sure, for example, that you’re not stereotyping the person or making assumptions (like, ‘no older people should want to go to a football match, they’re better watching it on TV’), and to prompt you to look for the option that restricts the person’s freedoms the least, while meeting the need.

The checklist asks you to consider:

Is the person likely to regain capacity and, if so, can this decision wait?
If this is a treatment decision, has the person made an advance decision to refuse this treatment? (Because, if they have, nobody can give this )
Who needs to be involved in the discussions? Next of kin, family, close friends, other community professionals. If there are no family or next of kin is there anybody (such as an LPA attorney) who has the right to make this decision?
What are the person’s wishes and feelings about this decision? Have they written anything down that might give you clues as to how they would decide if they had capacity?
What do you know about this person’s history, their spiritual or cultural beliefs, and what is important to them, that might influence this decision?
Have you made sure to consult people close to this person – relatives, or close friends – who will know far more than you probably do, about what this person might decide in this situation if they had capacity?
Are you sure that nothing in your decision-making is intended to bring about the person’s death? (People do die, and that’s natural, but you must not do anything with the intention of ending someone’s life).
Look really inventively for the least restrictive option to meet the need – don’t limit someone’s freedom to live as they wish, any more than you absolutely have

If a care plan is based on the person’s best interests it will comply with the MCA and will provide the evidence that may be asked for by the CQC or in any dispute. For small, everyday decisions, the checklist above will help you to understand what’s important to the individual, what do they love doing or would hate to do.

Staﬀ are protected from liability provided they work according to the care plan, but this must be based on the person’s best interests.

The Balance Sheet Approach: weighing up the options.

For bigger more complex decisions, such as a change to where they live, it’s a really good idea to use a balance-sheet approach.

A sample form is provided ;-

https://www.scie.org.uk/files/mca/directory/mca-tailored-for-you/health/pan-london- commissioner-toolkit/croydon-primary-care-mca-form.docx

List the pro’s and con’s of each option, using the wisdom gained from friends and relatives: make sure you give as much weight as possible to what the person actually wants to do, even if they lack mental capacity to make this decision for themselves.

(Information from case law shows that it is necessary for the care provider to demonstrate that they know what is important to their clients.)

Recording how you reached your decision

You will be acting within the MCA if you do your best to work out what is in the best interests of the person. You need to show that you’ve considered the checklist, rather than just imposing your own views about what should happen to the person. To do this, you need to record that you’ve considered the checklist, together with anything else that the person would think important. You need to write down what their wishes and feelings are, and make sure you briefly explain why you’ve eliminated some of the options.

You also need to record how you dealt with any disagreements: it’s only natural that people might have diﬀerent views about the person’s best interests.

https://www.qcs.co.uk/best-interests-work/

What are ‘best interests’ ?

The MCA provides a non-exhaustive checklist of factors that decision-makers must work through in deciding what is in a person’s best interests.

Do not discriminate. Do not make assumptions about someone’s best interests merely on the basis of the person’s age or appearance, condition or any aspect their
Take into account all relevant
If faced with a particularly diﬃcult or contentious decision, it is recommended that practitioners adopt a ‘balance sheet’ approach
Will the person regain capacity? If so, can the decision wait?
Involve the individual as fully as possible
Take into account the individual’s past and present wishes and feelings, and any beliefs and values likely to have a bearing on the decision
Consult as far and as widely as

Again, it is vital that you record your best interests decision. Not only is this good professional practice, but given the evidence-based approach required by the MCA, you will have an objective record should your decision or decision-making processes later be challenged. https://www.scie.org.uk/mca/practice/best-interests

Records

A “good” capacity assessment will include the following:

Clearly identify the capacity decision that is being assessed;
Ensure the client (and you) have the concrete details of the choices available (e.g. between living in a care home and living at home with a realistic package of care);
Identify the salient details the client needs to understand/comprehend (ignoring the peripheral and minor details);
Demonstrate the eﬀorts taken to promote their ability to decide;
Evidence each element of your assessment:

What is the impairment/disturbance? Is it temporary or permanent?
Why could P not understand, or retain, or use/weigh, or communicate in spite of the assistance given?
How is the inability because of the impairment/disturbance (as opposed to something else)?

Why is this an incapacitated decision as opposed to an unwise one? https://www.39essex.com/docs/newsletters/capacityassessmentsguide31mar14.pdf

Evidence of compliance with the MCA

The CQC may ask for the following evidence:

Are your assessment and planning records for care, treatment and support consistent with the Act’s code of practice guidelines?
Do staﬀ giving care, support and treatment know how detailed diﬀerent assessments of capacity should be?Are staﬀ aware of the ‘best interests’ principle?
Can outside professionals and people’s other supporters confirm that staﬀ act in people’s best interests and that any concerns are properly listened to and taken into account?
Do records confirm that decisions have been made in people’s best interests?

A Youtube clip demonstrates how this all looks in practice. https://m.youtube.com/watch?v=tAQhhHE4shI

Further resources

The following CQC publication provides comprehensive guidance as well as specific questions or evidence the CQC will require.

h t t p s : / / w w w . c q c . o r g . u k / s i t e s / d e f a u l t / fi l e s / d o c u m e n t s / rp_poc1b2b_100563_20111223_v4_00_guidance_for_providers_mca_for_external_publication.pdf

CQC guidance on making best interest decisions https://www.qcs.co.uk/best-interests-work/

Mental Capacity Act 2005 https://www.legislation.gov.uk/ukpga/2005/9/pdfs/ukpga_20050009_en.pdf

Simple Guide to the Mental Capacity Act – Best Interests Decisions