Mental capacity & safeguarding
The Mental Capacity Act 2005
The Mental Capacity Act 2005 (MCA) came into practice in 2007 but NSAB recognises that it remains a piece of law that is often confused with the Mental Health Act or used to make generalisations about an individual’s ability to understand situations or the actions that they take. There is also a Code of Practice which was published in 2013 which gives more detail on how to apply the law in day to day work.
The Code of Practice is currently being revised, and the draft version has been shared for consultation (closing 4 July 2022).
For a quick guide to some of the changes, have a look at this Community Care article published 22 March 2022.
Here we have developed some guidance to support multi-agency understanding:
This will also be updated once the Code of Practice is in final form.
‘Capacity assessment is not some kind of scientific process when capacity is ‘measured’, it is a social interaction – often with hugely high stakes for the person being assessed.’
From The Small Places blog written by Lucy Series
A new MCA toolkit has also been launched from Bournemouth University in October 2021, created with the Burdett Trust for Nurses.
It’s a free online learning tool to support nurses and other practitioners in their understanding and duties under the Human Rights Act and MCA. It is easy to use and helps you to think through the process in a structured way.
You can access it here:
There is also a Competency Framework also from Bournemouth University:
New - January 2022 - a new website offering guidance for clinicians and social care professionals on the assessment of capacity
As part of the Mental Health & Justice project, a new website has been launched with guidelines for clinicians and social workers in England & Wales (Gareth Owen / Alex Ruck Keene / Scott Kim / Kevin Ariyo). It includes things like:
- Capacity guide | Guidance for clinicians & social workers on the assessment of capacity
- Capacity Guide: Practical legal guidelines
This video created by Hounslow and Richmond Community Healthcare NHS Trust shows how the MCA can be used in practice - it is designed for health and social care colleagues but the principles are the same for all of us. The video shows some particular decisions to be made and how different factors change the approach of the person assessing capacity, and the outcomes; it includes examples of how to record your assessment too. It is 28 mins long, is engaging and the scenarios are clear and well acted by H&RCH staff, service users and family carers.
"The MCA is mainly concerned with people who are unable to make decisions, whether wise or unwise. The MCA is not about the right to make decisions more generally. It tells social workers and others how to recognise when a person lacks capacity and how they may make a decision for the person which will incur no more liability than they would have incurred if the person had capacity and consented. Our right to make whatever decision we wish, provided it is not prohibited or otherwise legally overridden, is not given to us by the MCA but is a fundamental constitutional right."
Community Care article June 2019 How misinterpretation of ‘unwise decisions’ principle illustrates value of legal literacy for social workers
Lasting Power of Attorney (LPA)
There are two types of Lasting Power of Attorney (LPA):
- LPA for Health and Welfare
- LPA for Property and Financial Affairs
These are legal documents where one person has given another person the legal power to make decisions on their behalf, in the event the first person no longer has the mental capacity to make their own decisions.
There is lots more information on the government website:
To check if someone holds LPA for another person, and also to check what type of LPA:
If you have a serious concern that someone holding LPA is not acting in the best interest of an adult at risk, causing harm or neglect, raise your concern with the Office of the Public Guardian (OPG).
Court of Protection
What the Court of Protection does
They make decisions on financial or welfare matters for people who can’t make decisions at the time they need to be made (they ‘lack mental capacity’).
They are responsible for:
- deciding whether someone has the mental capacity to make a particular decision for themselves
- appointing deputies to make ongoing decisions for people who lack mental capacity
- giving people permission to make one-off decisions on behalf of someone else who lacks mental capacity
- handling urgent or emergency applications where a decision must be made on behalf of someone else without delay
- making decisions about a lasting power of attorney or enduring power of attorney and considering any objections to their registration
- considering applications to make statutory wills or gifts
- making decisions about when someone can be deprived of their liberty under the Mental Capacity Act
The Court of Protection is based in London. Most cases are heard by district judges and a senior judge but can sometimes be heard by High Court judges. Cases can sometimes be transferred to a local court for hearing.
Court of Protection
PO Box 70185
First Avenue House
42-49 High Holborn
Enquiries: 0300 456 4600
DX: 160013 Kingsway 7
Opening hours and facilities:
For more guidance and case examples see also 39 Essex Chambers: Mental Capacity Law section
December 2021: the Liberty Protection Safeguards had been due to be implemented from April 2022, but a delay to this has now been formally announced - we await a new date.
In the meantime, Alex Ruck Keene has added this video to his Mental Capacity Law and Policy page, about how to prepare for changes - what we can do now: