Mental Health and decision making

The Mental Capacity Act came into force in 2007. It covers all sorts of decisions, where people aged over 16 may lack the mental capacity to make those decisions for themselves. It also allows for people to plan ahead for a lack of capacity in the future.

The Mental Capacity Act also provides the legal framework for acting and making decisions on behalf of individuals who lack the mental capacity to make a particular decision. Decisions can range from what a person wants to wear or eat, through to where a person wants to live, or whether to have serious or life changing medical treatment. Serious or life changing treatment is any treatment where there is a serious risk.

Everyone working with and/or caring for an adult who may lack capacity to make specific decisions must make reference to the Mental Capacity Act and the Code of Practice when making a decision, or when acting on behalf of that person. The same rules apply whether the decisions are life-changing events or everyday matters.

Principles of the Act

The Act is underpinned by five key principles:

A presumption of capacity – every adult has the right to make his or her own decisions and must be assumed to have capacity to do so unless it is proved otherwise.
Individuals being supported to make their own decisions – a person must be given all practicable help before anyone treats them as not being able to make their own decisions
Unwise decisions – just because an individual makes what might be seen as an unwise decision, they should not be treated as lacking capacity to make a decision
Best interests – an act done or decision made under the Act for or on behalf of a person who lacks capacity must be done in their best interests
Least restrictive option – anything done for or on behalf of a person who lacks capacity should have the least restriction of their basic rights and freedoms.

What relevance does the Mental Capacity Act have for the NHS?

The Mental Capacity Act places a legal requirement on all health and social care practitioners who work directly with service users. The Act introduces a criminal offence against any person who ill treats or is negligent towards a person lacking capacity, with potential fines and imprisonment.

Independent Mental Capacity Advocates (IMCAs)

The Independent Mental Capacity Advocate service provides independent safeguards for people who lack capacity to make certain important decisions at the time when such decisions need to be made, when the person has no-one else other than paid staff to support and represent them or be consulted. Local NHS staff would be expected to contact the IMCA service when:

The person lacks capacity, according to a decision-specific test for capacity. There must be a written record of this process.
The person without capacity has no friends or family, or where the NHS or local authority body deems there is no-one appropriate or practicable to consult with on the decision. For example, the family is out of the area or there is limited knowledge of the person requiring support.
When the person lacking capacity requires action around serious medical treatment, which could include providing, withholding or withdrawing treatment, such as electro-convulsive therapy (ECT) for non-detained patients, major surgery, chemotherapy, life-sustaining treatment considerations and so on.
When the person lacking capacity needs to change residence, where the local authority proposes to make changes to a person’s residence for more than eight weeks, or where an NHS body proposes to make changes to a person’s residence for more than 28 days.
Adult protection issues and care review representation may also be eligible.

Please note: If the treatment is urgent or is an emergency, health staff are not required to seek an immediate referral to an IMCA. There will, however, be an expectation that the IMCA service is notified and that treatment or care administered under emergency or urgent conditions is fully recorded.