Some of the keywords used in the Mental Capacity Act and their meaning are defined in the table below.
Please note that keywords relating to the Deprivation of Liberty Safeguards are not included, but can be accessed by clicking here.
|Advance decision to refuse treatment (ADRT)||Also known as a ‘living will’ or ‘Advance Decision’, an advance decision to refuse treatment (ADRT) is a legally binding decision made by a person from the age of 18 to refuse treatment at some point in the future, including life-sustaining treatment.|
|Applicant||This is the term used to describe the person or organisation making an application to the Court of Protection. In most Local Authority applications this will be the Director of Adult Social Services (DASS).|
|Balance of probability||
The balance of probabilities is the legal threshold by which a person’s capacity must be decided when this is not clear.Making a decision on the balance of probabilities means deciding whether it is more likely or not that a person has (or lacks) capacity based on all of the available evidence.
|Best Interests Case Conference||A meeting chaired and co-ordinated by the Decision Maker, to apply the Best Interests principle and make a Best Interests decision.|
|Best Interests Checklist||
The steps that must be taken by the Decision Maker in order to apply the Best Interests principle when making a Best Interest decision. They are;
In cases of life sustaining treatment, the checklist also requires the Decision Maker to ensure that those persons consulted or involved in the decision are in no way motivated to bring about the person’s death.
|Best Interests Principle||
Principle four, of the five principles set out in the Mental Capacity Act 2005, states:
“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”The principle covers all aspects of financial, personal welfare and healthcare decision-making and actions.
|Best Interests Decision||
A decision made after applying the Best Interests principle.
The decision making process must;
|Court of Protection||The specialist Court for all issues relating to people (from the age of 16) who lack capacity to make specific decisions.|
The person who makes a Best Interests decision after applying the Best Interests principle.Often the Decision Maker will be a care worker or a family member, but for decisions relating to medical treatment this is likely to be a medical professional and for decisions relating to e.g. housing this is likely to be the Local Authority.
|Deputy||A person appointed by the Court of Protection to make a decision (or a range of decisions) on behalf of a person who lacks capacity.|
|Diagnostic Test of Capacity||
Stage 1 of a mental capacity assessment, the diagnostic test determines whether the person has an impairment of, or a disturbance in the functioning of the mind or brain.If the outcome of Stage 1 is that no impairment or disturbance exists the person cannot be deemed to lack capacity.
These are decisions that cannot be made using the Mental Capacity Act 2005. Decisions should instead be made using other relevant legislation (for example adoption legislation).
Excluded decisions include;
|Functional Test of Capacity||
Stage 2 of the mental capacity assessment, the functional test determines whether the impairment or disturbance that exists is sufficient to render the person unable to make the decision (and therefore, lack capacity).
The test must establish a person’s ability to;
If a person is unable to do one or more of these things as a result of their impairment or disturbance they lack capacity and a decision must be made in their Best Interests.If the person is unable to do one or more, but there is no link to their impairment or disturbance they do not lack capacity.
|Impairments of, or Disturbances in the Functioning of the Mind or Brain||
An impairment or disturbance that is permanent, temporary, diagnosed or undiagnosed.The purpose of the mental capacity assessment is to determine whether the impairment or disturbance prevents the person from making their own decision.
|Independent Mental Capacity Advocate (IMCA)||
Established by the Mental Capacity Act (MCA) 2005, IMCAs provide an advocacy service to people who lack capacity to make a specific decision.
The Mental Capacity Act states that a person must have suitable representation in the following situations, and that this must be an IMCA where a family member or other appropriate representative is not identified:
|Lasting Power of Attorney (LPA)||
A lasting power of attorney (LPA) is a legal document that lets an adult (the ‘donor’) appoint one or more people (known as ‘attorneys’) to help them make decisions or to make decisions on their behalf.
This gives the adult more control over what happens to them if, for example, they have an accident or an illness and can’t make decisions at the time they need to be made.The adult must be 18 or over and have mental capacity when they make their LPA.
Whenever a decision is made or implemented on behalf of a person who lacks capacity this must be done in the least restrictive way necessary to achieve the outcome that is required.
For an option to be least restrictive it must;
Someone who has mental capacity is able to make their own decision at the time when that decision needs to be made.
The Mental Capacity Act says that a person is able to make their own decision if they can do all of the following four things:
|Mental Capacity Assessment||
The Mental Capacity Assessment is the test to determine whether a person aged 16 or over is able to make a specific decision at a particular time.
The assessment consists of a two-stage functional test.
Stage 1. Is there an impairment of, or disturbance in the functioning of a person's mind or brain?Stage 2. Is the impairment or disturbance sufficient that the person lacks the capacity to make a particular decision?
These are the steps that it is ‘possible and appropriate’ to take in order to support a person to make their own decision.
Steps could include;
|Principles of the Act||
There are 5 statutory principles of the Mental Capacity Act that apply at all times;
When making a decision in a person’s Best Interests the Decision Maker must identify all relevant circumstances.Relevant circumstances are the things that the person who lacks capacity would take into account (or be likely to take into account) if they were making the decision for themselves.
Information relevant to the decision that needs to be made.
Relevant information should be sufficient to enable a person to;
An unwise decision is any decision made by the person that others think is not the best decision for them.
Principle 3 of the Mental Capacity Act sets out that making an unwise decision is not an indicator that a person lacks capacity, and the person assessing capacity must have regard for the;