Mental Capacity Act 2005: What it means for your practice
The Mental Capacity Act 2005 (c.9) came into force in April 2007. It's primary focus was to provide a legal framework for adults who were felt to "lack capacity" to make decisions for themselves. This blog will look at the elements of this Act and what it means for nurses in their day to day lives.
The Mental Capacity act was something that I knew little about, until recently a few patients came through our unit that we had concerns about their capacity, which led to the need to take action. As part of reflective practice and in order to learn more about what rights and protection we could provide for these people I felt the need to research and find out more about the act and what it meant for nurses like myself day to day.
There are statutory principles within the act:
"The following principles apply for the purposes of this Act.
A person must be assumed to have capacity unless it is established that he lacks capacity.
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.
A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
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.
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."
So there is talk about capacity, and in order to understand what the act means to us as nurses this should be defined.
Mental Capacity definition (mental capacity | Reference.com)
1 : sufficient understanding and memory to comprehend in a general way the situation in which one finds oneself and the nature, purpose, and consequence of any act or transaction into which one proposes to enter
2 : the degree of understanding and memory the law requires to uphold the validity of or to charge one with responsibility for a particular act or transaction < mental capacity to commit crime requires that the accused know right from wrong>
For the purpose of the Mental Capacity Act, it is lacking 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.
So for the purpose of the act, mental capacity is the ability to make decisions about lots of things in our lives, this capacity may be altered for a number of reasons at one time or other such as learning disability, stroke, brain injury, mental illness.
This can be a temporary or permanent impairment.
The office of the Public Guardian states that "The Mental Capacity Act 2005 for England and Wales provides a framework to empower and protect people who may lack capacity to make some decisions for themselves. It makes it clear who can take decisions in which situations, and how they should go about this. It also allows people to plan ahead for a time when they may lack capacity" 410 - Page Archived
So how do we assess capacity?
- Does the person have a general understanding of what decision they need to make and why they need to make it?
- Does the person have a general understanding of the likely consequences of making, or not making, this decision?
- Is the person able to understand, retain, use and weigh up the information relevant to this decision?
- Can the person communicate their decision (by talking, using sign language or any other means)?
- Would the services of a professional (such as a speech and language therapist) be helpful?
Office of the Public Guardian - GOV.UK
When assessing capacity you must also consider that if it is a complex issue that the decision is related to then there may be a need to involve a more experienced and qualified professional to assist you.
In assessing capacity you must ensure that the person has all the information to empower them to make the decision in a way that is understandable, and if necessary use alternatives means of communication such as diagrams, sign language to ensure the information is communicated effectively.
Some people who lack capacity, may require more protection and and care than others to ensure their safety, at times this may well mean that we deprive them of their liberty, this is where the Deprivation of Liberty Safeguards come into force (DoLs)
The European Court of Human Rights has said that the rights of people who can't make decisions and who need to have their liberty taken away in hospitals and care homes must be strengthened. People's liberty should not be taken away if they can be cared for in a less restrictive way. The MCA DOLS will protect people who can't make decisions about treatment or care, who need to be cared for in a restrictive way. For example, some people who have dementia, a mental health problem or a severe learning disability.
The law says the MCA DOLS must be used if people need to have their liberty taken away in order to receive treatment and/or care that is in their best interests and protects them from harm.
Mental Capacity Act 2005 Deprivation of Liberty Safeguards (MCA DoLS) | Wiltshire CouncilLast edit by Joe V on Jan 13, '15
Jan 28, '11Im not in the UK be we had to go through something similar when a relative became forgetful etc all that goes with dementia. The social services take great care in determination and I laud their efforts.