The Mental Capacity Act in 2005 (MCA) is designed to protect and empower individuals who may lack the mental capacity to make their own decisions about their care and treatment. It is a law that applies to individuals aged 16 and over.
The Act also enables you to plan ahead, in case you are unable to make important decisions about medical treatment in the future. One way you can do this is to make an ‘Advance Decision to Refuse Treatment’ or as it is formally known an ‘advance decision’.
The Mental Capacity Act (2005) provides a legal framework to empower and protect people who, on a permanent or temporary basis, cannot make specific decisions for themselves. It also describes the process that doctors and other healthcare staff, family and professional carers should follow when they must make decisions or act on another person’s behalf.
The Mental Capacity Act Code of Practice gives guidance on how the Act should work in everyday situations. Among other things, it explains how to assess whether someone lacks capacity to make a particular decision, how to provide support that could help them make or communicate a decision and what it means to act in the ‘best interests’ of someone unable to make a decision for themselves.
Mental capacity is decision specific. For example, you may not be able to decide on a major or complex issue but can decide a smaller or more straightforward one. Your capacity may vary depending on the type of illness or condition you have or your capacity might change from day to day, so no general presumption should be made.
Taking time to understand something or communicate can be mistaken for a lack of mental capacity. If you have difficulty in communicating a decision, attempts should always be made to overcome those difficulties before concluding that you do not have capacity.
If a doctor is confident that you lack mental capacity to make a particular decision at the time it needs to be made, he or she has a legal and ethical obligation to act in your ‘best interests’.
There are exceptions to this:
- if you have made an ‘Advance Decision to Refuse Treatment’
- if you have made a Lasting Power of Attorney (health and care)