Key Facts

The MCA 2005 provides a statutory framework to protect people who lack capacity to make specific decisions, while empowering those who can. It replaced the previous common law best interests approach with a structured, principled framework.

Five Statutory Principles

1. Presumption of capacity: every adult presumed to have capacity until proven otherwise
2. Support before concluding lack of capacity: all practicable steps must be taken to help the person make their own decision
3. Unwise decisions: a person is not to be treated as lacking capacity merely because they make an unwise decision
4. Best interests: any act done for a person lacking capacity must be in their best interests
5. Least restrictive option: choose the option that least restricts the person's rights and freedoms

Two-Stage Capacity Assessment

Stage 1 (Diagnostic): Does the person have an impairment or disturbance of the mind or brain? (e.g. dementia, delirium, learning disability, brain injury, mental illness, intoxication)

Stage 2 (Functional): Because of this impairment, is the person unable to:

• Understand the relevant information?
• Retain the information long enough to make the decision?
• Use or weigh the information as part of the decision-making process?
• Communicate the decision (by any means)?

Failure at ANY of the four functional criteria = lacks capacity for that decision.

Who Assesses Capacity?

• The decision-maker (person proposing the treatment/action) assesses capacity
• For day-to-day care decisions: care team
• For medical treatment: treating clinician
• For complex cases: involve psychiatrist, neuropsychologist
• Formal assessment and documentation required

Common Situations Requiring Capacity Assessment

• Consent to medical treatment (surgery, medication)
• Discharge decisions (returning home vs care home)
• Financial decisions (managing money, selling property)
• Personal welfare (where to live, care arrangements)
• Advance care planning (ADRT, DNACPR)
• Research participation
• Marriage/sexual relations

Supporting Decision-Making

• Provide information in simple language
• Use visual aids, Easy Read materials
• Choose optimal time of day (e.g. avoid evening for sundowning in dementia)
• Minimise distractions
• Allow extra time
• Involve familiar people
• Repeat information if needed
• Use preferred communication method

Red Flags

• Assuming lack of capacity based on diagnosis alone (diagnosis ≠ incapacity)
• Capacity assessment not decision-specific (assessing 'general capacity')
• Not documenting the capacity assessment
• Undue influence by family or professionals affecting the assessment
• Fluctuating capacity not assessed at optimal time

Capacity Assessment Documentation

• Date and time of assessment
• Decision being assessed
• Stage 1: nature of impairment/disturbance
• Stage 2: assessment of each functional criterion
• Information provided and how it was communicated
• Efforts made to support decision-making
• Conclusion: has/lacks capacity for this specific decision
• Who was consulted
• Plan (if lacks capacity: best interests process)

Formal Assessment Tools

• No single validated tool required by MCA
• Assessment is clinical judgement based on two-stage test
• Aids: MacCAT-T (MacArthur Competence Assessment Tool for Treatment) — research tool, not mandated
• SMMSE/MoCA: assess cognition but do NOT equate to capacity
• The assessment IS the clinical interaction documented as above

Best Interests Decision-Making (When Person Lacks Capacity)

• Consider all relevant circumstances
• Consider whether and when the person may regain capacity
• Encourage and permit the person's participation as much as possible
• Consider: past and present wishes, feelings, beliefs, values
• Consult: anyone named by the person, carers, family, LPA attorney, IMCA
• Do NOT make assumptions based on age, appearance, condition, behaviour
• Do NOT be motivated by desire to bring about the person's death

Safeguards

• IMCA (Independent Mental Capacity Advocate): must be appointed when serious medical treatment decisions are made and person has no one appropriate to consult
• Court of Protection: resolves disputes about capacity and best interests; can make declarations and appoint deputies
• DoLS (Deprivation of Liberty Safeguards): authorise restriction of liberty in hospitals/care homes; being replaced by Liberty Protection Safeguards (LPS)
• Advance Decision to Refuse Treatment (ADRT): valid and applicable ADRT is legally binding
• LPA: if person previously appointed a health and welfare attorney, attorney makes decision

Referral Criteria

• Disagreement about capacity: seek second opinion or Court of Protection
• Serious medical treatment with no consultees: appoint IMCA
• Suspected deprivation of liberty: DoLS/LPS authorisation
• Disputed best interests: Court of Protection
• Complex capacity assessment: psychiatry or neuropsychology referral

• The MCA has significantly improved protection for vulnerable adults since implementation in 2007
• Capacity assessments are now a routine part of clinical practice
• Common errors: not assessing capacity at all, not making it decision-specific, not documenting properly
• Liberty Protection Safeguards (when implemented) will replace DoLS with a streamlined framework
• CQC inspections assess MCA compliance in healthcare settings

MCA Two-Stage Test Summary

Key MCA Safeguards