This guidance is to support multi-agency understanding and increase awareness of, and confidence in, the subject. In particular, how this can relate to safeguarding adults and aims to support people who don’t undertake mental capacity assessments all the time, considering the principles of the Act primarily, as much as using those to consider someone’s capacity (the assessment). It is not intended to replace training on the Act.

Some of the areas covered:

What is the point of the Act?

When to use MCA?

 Who does the assessment?

How is capacity assessed?

Best Interests

Mental health

Deprivation of Liberty Safeguards & Inherent jurisdiction

Summary, links and examples

Click on the links above to jump about, or scroll through at your leisure.

What is the point of the Act?

The MCA tells us to make sure that decisions are not made for people where they are able to choose for themselves, to help people decide for themselves, even if we do not necessarily agree with the decision.

It protects the rights of a person who may not be able to make a decision where their mind or brain is impacted by illness, disability or the effect of drugs or alcohol, and says that we must take certain steps to make sure that any action that happens is in the best interests of that person.

One part of the Act does relate to the assessment of an individual’s mental capacity in relation to particular decisions, but it is the 5 principles which are the most important to understand first and help you to think about how you might use your knowledge of the MCA in your day to day work:

1.  First, we start by “presuming capacity” – do not assume that a condition or disability impacts a  person’s ability to make a decision, it should be the opposite – most people can make some decisions

 2.  We must make every effort to help and support the person to make the decision - think about the information they need to have, the way that information is presented or talked through

 3.  Remember that adults have the right to make decisions that may be seen by others as unwise – you may not agree with their decision, but this does not make it the wrong one for them

4.  If someone else has to make a decision on behalf of an adult assessed as lacking capacity, their best interests must be considered (more on what best interests means below)

 5.  Any decision made must be the least restrictive option, with as little impact as possible on the person’s rights and freedoms.

Thinking about mental capacity and safeguarding concerns, it can be about how people choose to keep themselves safe from others, from neglect and abuse, and how we need to protect those who are unable (because of that impairment) to protect themselves, in a way that is meaningful to them.

What is ‘capacity’?

This question is surprisingly complicated to explain, and perhaps the reason the Mental Capacity Act remains a source of confusion for many people.

Mental capacity in this sense relates to a person’s ability to make a decision – specifically to understand and remember (retain) relevant information, use this to weigh up the consequences of the decision to be made (or not be made), and communicate their decision. Sometimes you may see this called ‘decisional capacity’.

It is not necessarily the ability to do the action, although this aspect needs to be thought about in certain circumstances and is often referred to as ‘executive function’ (previously referred to as executive capacity). There is more on this below.

There’s a very important difference between someone who does not carry out the action from a decision because they have changed their mind, or never intended to do it in the first place, and someone whose brain functioning is affected by a condition or illness meaning they have less or no control over how their thinking may change between the time of the decision and the action.

Section 2 of the Act says that:

“a person lacks 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.”

“At the material time” means at the specific point the decision needs to be made or carried out. For example - someone has problems with their short-term memory, so they struggle to remember new information for longer than an hour. They are able to use the information they are given within that timeframe to make decisions – so, for example, to agree to have an injection when assessed at the time it is being given – but if they agreed to someone coming into their property to do some maintenance in a week’s time, they are unlikely to remember and may refuse the person entry, unable to make the decision at the ‘material time’.

But I don’t need to use the MCA in my job?

The Act applies to anyone involved in the care, treatment and support of people who are aged 16 and over (living in England and Wales) who are unable to make all or some decisions for themselves.

So this responsibility applies in any situation where you are supporting someone else to carry out an action – it can be as simple as: does someone want to get up from bed, to have a wash, to get dressed, what clothes they want to wear, what they want for breakfast, if they want to take their medication, what they want to do that day.  

It could be a decision to pay for a service or item, or not, to transfer money to another person, to make a new will, to sell a property. It could be a decision to stay somewhere where they are experiencing physical, emotional, financial abuse; or to stay in a home where the environmental risks are really high. It could be around the decision to share information, to have medical treatment, to see a friend or family member. Some of these are more complicated decisions, some are day to day.

Remember the MCA applies from the age of 16 – there is some overlap between 16 and 18 where parental responsibility is still in force. It is important to note that parents cannot automatically make decisions for their adult children (18 and over), without applying for legal authority (usually through a Lasting Power of Attorney or the Court of Protection). 

When do we use the Mental Capacity Act to assess someone’s capacity?

One thing to be very clear about – is there an actual decision the person needs to make – or is it more that you are worried about the situation overall, perhaps a risky situation?

There must always be a sound reason for carrying out an assessment, otherwise it could be considered an intrusion into someone’s life, breaching Article 8 of the European Convention on Human Rights.

It may be harder than you think to identify a decision to be made, especially in complex cases where there are several issues some of which may be conflicting.

Example: a person living with mental health needs but not in acute crisis is displaying what is perceived as anti-social behaviour in their community. They are drinking alcohol which makes the behaviour more extreme at times, shouts and threatens people when walking in the local streets, damages their rented property and doesn’t always take their medication. What decision(s) would you want to assess their capacity around?

Be clear about the decision to be made – which may depend on your role. A mental health worker would be interested in the person’s decision-making around their medication in the example above but might be interested in their choice around alcohol use as it could link with the medication need.

What information do you need to make sure the person has access to, and what questions might you need to ask to explore the person’s ability to make that decision – why do you think they might be unable to make that decision? It is not a test of the person’s memory, or what they know, but their ability to weigh that relevant information up to make the decision.

Assuming capacity does not mean that you cannot ask questions to explore why someone is making or has made certain decisions. Be curious.

A key point is that decision-making under the MCA is time and decision specific. Just because a person is assessed to lack capacity about one decision, this does not mean they automatically lack capacity about a different decision, or that their capacity may be different at a different time.

So, avoid generalising – do not use the phrase ‘this person lacks capacity’. Instead it should be ‘this person has been assessed to lack capacity to make the decision about … e.g. moving into residential care’.

Does the person have an impairment of the mind or brain?

Is there evidence to suggest that this impairment affects their ability to make the decision? The Mental Capacity Act assessment cannot be used unless there is some indication nor evidence of actual impairment.

You will find that you are already using the principles of the MCA in most interactions with other people – we assume that adults have the right to make choices about their own lives. If someone makes what we think of as an odd decision, we will think through why they might be doing it. If it is friends or family we might think ‘it’s not what I would do’, we might talk through our own views with the person but conclude that ultimately it is their life.

It is the same with the people we work with and support. You should be applying the principles in all your activity, even if you do not need to make formal assessments of a person’s mental capacity.

Remember – a diagnosis does not automatically mean a person cannot make their own decisions. There may be a health condition which will improve, or change. Some people who live with dementia may experience ‘sundowning’, where their impairment increases towards the end of the day, so decision-making is likely to be better in the mornings.

What decisions can’t be made using the Act?

There are certain decisions which cannot be made using the best interest process, these are known as exempt decisions and are listed below:

• Consenting to marriage or a civil partnership
• Consenting to have sexual relations
• Consenting to a decree of divorce on the basis of two years’ separation
• Consenting to the dissolution of a civil partnership
• Consenting to a child being placed for adoption or the making of an adoption order
• Discharging parental responsibility for a child in matters not relating to the child’s property, or
• Giving consent under the Human Fertilisation and Embryology Act 1990

(Code of Practice, chapter 1.10)

However, remember that the capacity of the individual still needs to be assessed in the first place. Bear in mind the ‘relevant information’ required for each of these decisions.

For example, someone getting married  - the registrar has the legal duty to ensure the individuals have the mental capacity to enter into the legal agreement, but if a person is assessed to lack capacity, the registrar cannot agree to the marriage taking place.

It is the decision that is exempt, rather than the capacity assessment.

Most people can make some decisions

You need to be clear about what evidence you have that the impairment affects their thinking. Someone experiencing acute mental illness may have extreme hallucinations affecting their ability to make decisions about taking medication one morning, but still be very able to decide what they want to wear that day, what they want to eat, who they want to spend time with, where they want to go.

Some examples where you might need to use the principles of the MCA, explore more, and consider how to use the law:

• financial volunteer – someone tells you that they have given a neighbour a large sum of money, but this means they are overdrawn and about to go into rent arrears
• community health – someone tells you that they don’t want their leg ulcer dressing changed, even though it is clearly heavily soiled
• housing officer – a tenant continually causes disruption to their neighbours by banging on doors late at night
• on a hospital ward – a patient refuses to take a new medication

More formal MCA assessment may happen where:

• the person being assessed disagrees with the outcome
• others, including family members or other professionals, disagree about a person’s capacity
• there is a conflict of interest between the assessor and the person being assessed
• the person being assessed is saying different things to different people – they may be trying to please everyone or telling people what they think they want to hear
• somebody might challenge the person’s capacity to make the decision – either at the time of the decision or later
• an adult at risk may lack capacity to make decisions that protect them from abuse
• a person repeatedly makes decisions that put them at risk or could result in harm.

The Act makes it clear that advocacy must be considered for adults at risk where they lack capacity, or there is a concern they may lack capacity. Advocacy aims to support the individual to make the decision, giving them the best possible chance to make it themselves. An advocate can be family or friends, but where those involved are not felt to be impartial enough to be an effective advocate, or where the person has no appropriate support, an Independent Mental Capacity Advocate (IMCA) can be appointed. There are also certain circumstances where an IMCA must be appointed.

For more information, have a look at the SCIE site: Practice guidance on the involvement of Independent Mental Capacity Advocates (IMCAs) in safeguarding adults: Deciding whether an IMCA should be instructed (scie.org.uk)

Who does the assessment?

This will always depend on the decision to be made.

The MCA say that the ’decision-maker’ will be the person carrying out the assessment. This is the person who would be responsible for making the decision on the person’s behalf because they will be the one carrying out the action if the person is assessed to lack capacity.

• A nurse who wants to give a person an injection – the nurse is the person who will carry out the action (the injection) and therefore would assess capacity to agree to the injection
• A carer wants to support someone to get up, washed and dressed – the carer is the decision-maker as they would carry out the care intervention
• A fire officer wants to install a smoke alarm in a cluttered home – the fire officer would assess the capacity of the person as they would be doing the installation
• A social worker is talking to someone about moving into residential care – the social worker will be the person making the arrangements and so would assess capacity if there was a concern or impairment
• A doctor wants to prescribe medication to someone – the doctor has made a clinical assessment of the need for the medication and then has to assess the person’s capacity to decide if they will take it.

Some more examples of this:

NB: copied with permission of Vikki Bunting Norfolk County Council (Social Worker; Team Manager Learning Disabilities Team Eastern; DOLS assessor; Practice Educator)

Circumstances	Who would make the decision	What is the question
An adult with a Learning Disability has a tooth infection which needs removal under general anaesthetic.	Dentist	Consent to tooth extraction
An adult with dementia is struggling to manage in their home and needs a small package of support to enable them to stay safe at home.	Care manager / social worker	Consent to care arrangements
An adult with dementia’s daughter has a Lasting Power of Attorney, her needs are such that she needs to go into residential care.	LPA - Health & Welfare rather than Property & Financial affairs	Where they live
An adult with bi-polar affective disorder wants to have a sexual relationship with her partner.	Excluded decision	Consent to a sexual relationship
An adult with Huntingdon’s disease is refusing her medication which is essential to her wellbeing.	Doctor (potential for covert medication)	Consent to medication
An adult with a learning disability who has a young child is under a Child Protection plan and there are considerations about the adult’s ability to appoint legal representation.	Children’s worker/legal department – will usually tender this out	Capacity to appoint legal representation

How is capacity assessed?

We’ve looked at the first part: is there a decision to be made, and does the person have an impairment or disturbance of the functioning of the brain that you believe affects their ability to make that decision?

The next part is in four stages:

1.    Can the person understand the information you give them about the decision that needs to be made? (principle 2 tells us to make sure the person has all the information they need, in a format they can use, and make every effort to help them to understand) 

2.    Can the person retain (remember) the information they need for long enough to make the decision? (if the decision is right now, someone with poor short term memory might not remember tomorrow, but can make the decision in the moment with the right support; a decision which has a following action next week that they will not remember to do would indicate impaired capacity) 

3.    Can they use this information to weigh up the decision? (can you see that they are able to think through the information, and explain why they are making the decision? Just saying ‘yes’ or ‘no’ is not enough – why are they saying yes or no?) 

4.    Can they tell you their decision, in whatever way they communicate? (do they need support to tell you verbally, or use a different language, communication aids?)

This assessment can be quick and simple, or for more serious or complicated decisions as we saw above, conducted and recorded more formally. If any one of the four elements of decisions making is missing, then the person is understood to lack capacity for that decision at that time.

Using two our examples from above:

• (financial volunteer – someone tells you that they have given a neighbour a large sum of money, but this means they are overdrawn and about to go into rent arrears) you explore with them why they gave the money, you make sure they understand how much it was and the consequences; can they understand they will get into debt themselves and what this will mean? Can they explain why they made that decision in a way that shows they weighed up the decision before making it? If you feel that the decision made was affected by impairment, you would consider referring for a formal assessment of the person’s ability to safely manage their finances, to support them in any future decision-making – and of course, consider if you need to raise a safeguarding concern. 

• (community health - someone tells you that they don’t want their leg ulcer dressing changed, even though it is clearly heavily soiled) you explain to them the risks of infection and the wound getting worse, and why having the dressing changed will help it get better; you explore with them the reasons why they don’t want it changed and then work with them to resolve concerns they have, at which point they agree to the intervention.

Executive function / dysfunction

There can be occasions where someone has capacity on assessment but then does not carry out the action at the point the decision has to be applied. This can be described as having decisional (or functional) capacity but not executive function – the ability to ‘execute’ (carry out) the decision is impacted by their impairment.

Executive function is not mentioned in the Act or the Code of Practice but is used in some case law examples. The Act is there to assess the ability to make a decision – if a person needs support to carry out that decision it does not automatically mean the person lacks capacity.

This could apply to people who have problems with their short-term memory, or who are influenced by the opinions of others, or impacted by drug or alcohol use. It may be seen with people who are felt to self-neglect.

Executive Capacity slides - Alex Ruck-Keene

Show your evidence and document your decision

Best practice is always to document in some way where you have considered a person’s mental capacity in relation to a decision. This should include where you felt there were no concerns – e.g. “Mrs A agreed to X, she has no dementia or other impairment, was able to tell me all about X and I felt she fully understood the decision she was making”.

Often in safeguarding cases it can be very difficult to tell the point at which a person no longer had the mental capacity to make a decision, usually because an assumption of capacity has been made in the past, but not been shown why. This can mean that people who have carried out abusive acts cannot be prosecuted by police.

Capacity can also change as a condition progresses. A person with a dementia diagnosis could refuse a specific medical treatment and be assessed to have the capacity to make that decision at the time they were asked. But that dementia could progress, or the person become more unwell, and then family members challenge the decision. If the original assessment has not been properly recorded by the medical professional who assessed their capacity, then there is no evidence to show the decision was made lawfully.

Your assessment of capacity should be recorded somewhere others who might need the information, will be able to find it. Ask your manager if you are not sure where to record your assessment.

What happens next?

Where the person is assessed to have capacity to make the decision – principle 3 of the MCA reminds us that even if we do not agree with the decision made, it is the right of the adult to make that choice. We can still (and should) continue to support the person where we have concerns, and work with them to minimise risks where possible. It is not uncommon that people have capacity and make decisions to stay in abusive or neglectful situations, but our role in prevention remains.

Keep the conversations open with the person – we still have the responsibility to step in if the type or level of risk or capacity changes, but we need to recognise when that happens, and not just step away. We can still continue to offer and explore options, using our professional curiosity, and of course sharing information where relevant.

Where the person is assessed to lack capacity, the next step will be to make a best interests decision. What does this mean?

Best Interest decision-making

“Best interests” means that we have to consider what the person themselves would choose to do if they had capacity. Because this may be difficult to work out, we have to involve people who know them well, and consider all the options available. The option chosen should always be the least restrictive to the person, given the level of risk involved in relation to the decision.

The final decision might be different to what a family member, professional or other interested person thinks is ‘best’ for that person.

Using our example of the leg dressing – the medical opinion might be that it is best to change every day, but the amount of distress this could cause the person, and support needed to carry it out every day could be seen as too restrictive – so the final decision could be that it will be done every other day, which might mean the wound healing more slowly but overall would achieve the outcome needed.

Sometimes the adult will have appointed someone who can make decisions on their behalf – a Lasting Power of Attorney (LPA). There are two types: LPA for Property and Financial affairs and LPA for Health & Welfare.

If someone tells you they have LPA, be clear which one or if it is both, as this will affect the type of decision-making they can legally do. So, someone with LPA health and well-being cannot make financial decisions. The LPA has a duty to make sure that the decisions they make are still considered in the best interest of the person.

It is good practice to ask to see a copy. You can easily check if anyone holds LPA through the Office of the Public Guardian (OPG).  

If you have a serious concern about decisions taken by someone who has LPA, especially where these may constitute abuse or neglect, contact the OPG to tell them of your concerns, as they are the statutory body responsible for making sure attorneys are acting appropriately. Report a concern about an attorney, deputy or guardian - GOV.UK (www.gov.uk)

Where all those involved cannot agree on an action, a legal request can be made to the Court of Protection to make the decision. The Court also makes decisions about appointing Deputies to make decisions, where a person lacks capacity to appoint someone as LPA.

Example: there was a Court of Protection ruling in January 2021 made around having the Covid-19 vaccine. Mrs E has dementia and her son objected to her being given the vaccine on the grounds of its effectiveness, speed of rollout, and that his mother’s views had not been properly asked. The CoP judge looked at all the information and decided that Mrs E would, on balance, have chosen to have the vaccine (for example, she had had previous vaccines offered on the basis of public health, and had shown trust of the medical profession in the course of her life) and also that the GP, along with care home staff, had made a reasonable assessment of her capacity and wishes.

Even where a decision is made, there is still the practical issue of carrying out an action where a person does not want it to happen. It could also be that in making the best interest decision, which is right for the individual, there remains an impact on those around them. Human lives and interactions are complicated, and there are rarely simple solutions, including when using the MCA.

SCIE have a short video example to help you think about best interests.

39 Essex Chambers have a brief guide to carrying out best interests assessments.

Ill-treatment & neglect under MCA

The Mental Capacity Act introduced for the first time specific offences relating to ill-treatment or wilful neglect of an adult assessed to lack mental capacity, by a person responsible for their care. These can apply where actions carried out by that person are contrary to any best interest decision e.g. a BI decision is made that someone needs thickened fluids, and the person responsible gives unthickened fluids causing aspiration pneumonia.

Section 20 defines “care worker” - means an individual who, as paid work, provides:

• health care for an adult or child (other than excluded health care), or
• social care for an adult.

Section 21 clarifies that care providers can be considered in a similar way.

The criminal law treats ill-treatment and wilful neglect as two different things, although an individual or provider can be charged with both if there is sufficient evidence. It also uses the term ‘wilful neglect’ which in practice can be difficult to prove ‘beyond all reasonable doubt’, the legal standard. It can be hard to evidence than someone set out to cause deliberate harm through their actions. 

Bear in mind that under the Care Act 2014, for safeguarding adults, neglect is always abuse regardless of the intention.

Wilful neglect is specifically used in this criminal aspect of the MCA.

Isn’t it all about mental health?

It is worth pointing out the main differences between the MCA and the Mental Health Act.

The MHA 1983 is the main law that covers the assessment, treatment and rights of people with a mental health disorder. It has very similar principles to the MCA involving least restrictive options, involving the patient, respect and keeping the person central to the process.

However, the MHA tells us what should happen when someone who is living with a mental illness needs treatment and protection for themselves / others. So it covers things like making people go to a mental health hospital when they are very unwell, and making sure they have support with their mental health needs when they leave hospital.

Remember the point about ‘presuming capacity’? Not everyone who experiences mental health issues will have impaired mental capacity. Not everyone who has impaired mental capacity will have a mental health issue. It is important to understand that the MHA is only really ‘used’ as an assessment when someone is very unwell and likely to hurt themselves or others.

The Mental Capacity Act is ‘used’ to assess someone when there is a specific decision to be made and the person appears to have an impairment which means they either need support to make it or need someone else to make it.

One situation where they can overlap is where the decision is around medical treatment for an acute mental health condition. Both laws will need to be considered - where the person lacks capacity to decide to be admitted to hospital but is not objecting to admission or treatment, the use of the MCA (Deprivation of Liberty Safeguards (DoLS) or Court of Protection order – more on these below) may be the least restrictive option.

But for someone who is objecting, because of the very restrictive nature of the outcome of the decision, i.e. forced admission to a place the person will be made to have treatment and is not allowed to leave, the MHA would ‘trump’ the MCA and be the most protective option.

You can see that they are two quite different pieces of law, mainly used in different circumstances, but the areas of overlap can create confusion.

What are the Deprivation of Liberty Safeguards (DoLS)?

In 1997 there was a court case where a man with a learning disability and autism was admitted to a hospital informally under the MHA and his carers took the local Mental Health Trust to court because they did not agree with his admission. The case went all the way to the European Court of Human Rights in 2004 and is known as the Bournewood Case.

The outcome was recognition that he had been ‘deprived of his liberty’ – this means that he:

• was under continuous supervision and control, and
• was not free to leave (in another court case in 2014, known as Cheshire West, this part was made clearer – so the person doesn’t have to be trying to leave, but if they did, would they be made to stay)
• and he lacked capacity to consent to the arrangements.

The phrase was used: ‘a gilded cage is still a cage’.

But there was no legal process for him or anyone else to challenge this decision to admit him, or to protect his human rights, which he would have had as a formal patient under the Mental Health Act. You might also hear this called the Bournewood Gap.

There were lots of similar cases of people who had been admitted to hospital as informal patients simply because they were not objecting; using the more restrictive sections of the MHA would not have been appropriate, but the protection needed to be the same. As a result of this case, the Deprivation of Liberty Safeguards were eventually created as an addition to the MCA and came into use in 2009.

They cover any person in accommodation where care and / or treatment is provided, so this means care homes and hospitals. The Safeguards are there to protect Article 5 human rights “to liberty and security”, to provide a process to support people who need care and treatment but lack capacity, and to offer timely legal protection.

For people needing similar support outside of care homes and hospitals, there is currently a similar process via orders made by the Court of Protection.

Currently a DoLS application involves a number of different assessments taking place, but there was a review by the House of Lords in 2014 that said the DoLS process wasn’t really working as intended, and so in May 2019 the Mental Capacity (Amendment) Act brought in a new system called Liberty Protection Safeguards (LPS).

Unfortunately this has now been delayed until a decision is made by the next government; it had hoped to be a simpler and more person-centred process.

Inherent jurisdiction

Where a person has no diagnosed or obvious impairment to their capacity, but there are concerns that a third party may be influencing their decisions in some way leading to decisions which put them at significant risk of harm, it is possible to take a case to the High Court under inherent jurisdiction. This only applies where there are no other laws which would prevent the harm e.g. MCA, MHA, criminal processes; where every other possible option has been explored, and where the option being proposed is restrictive in some way e.g. an imposed change of accommodation.

The Court can take a view on how external influences and ‘disabling factors’ affect the person’s ability to make their own decisions; the purpose is to restore the person’s decision-making ability away from the impact of those other factors. It can be considered in self-neglect cases too, although this is very rare.

Mental-Capacity-Guidance-Note-Inherent-Jurisdiction-November-2020.pdf (netdna-ssl.com)