What is The Mental Capacity Act?
The Mental Capacity Act (MCA) is designed to protect and empower individuals who may lack the mental capacity to make their own decisions about their finances, care and treatment. It is a law that applies to individuals aged 16 and over.
At the heart of the Mental Capacity Act are the ‘Five statutory principles’
1. A presumption of capacity -Every adult has the right to make his or her own decisions, and must be assumed to do so unless it is proved otherwise.
2. Individuals being supported to make their own decisions
– A person must be given all practicable help before anyone treats them as not being able to make their own decisions.
3. Unwise decisions– People have the right to make decisions that others might regard as unwise or eccentric.
4. Best interests– Anything done for or on behalf of a person who lacks mental capacity must be done in their best interests
5. Less restrictive option-Treatment and care provided to someone who lacks capacity should be the least restrictive of their basic rights and freedoms possible, while still providing the required treatment and care.
Can Brain Injury impact mental capacity?
Traumatic Brain Injury can have a significant impact on an individual’s capacity to make decisions.
This could be due to cognitive, emotional and/or behavioural difficulties, which can impact on their ability to understand the consequences of their decisions. Thus, leaving people unable to manage their own financial affairs or make decisions about their welfare.
These changes can be permanent, so long-term arrangements may need to be put in place to enable decisions to be made in a person’s best interests.
How is Mental Capacity determined?
In order to decide if an individual has the capacity to make a particular decision they will undergo a two stage functional test:
Is there an impairment of, or disturbance in the functioning of a person’s mind or brain? This could be due to long-term conditions such as mental illness, dementia, or learning disability, or more temporary states such as confusion, unconsciousness, or the effects of drugs or alcohol. If so,
Is the impairment or disturbance sufficient that the person lacks the capacity to make a particular decision?
The MCA says that a person is unable to make their own decision if they cannot do one or more of the following four things:
- Understand information given to them
- Retain that information long enough to be able to make the decision
- Weigh up the information available to make the decision
- Communicate their decision – this could be by talking, using sign language or even simple muscle movements such as blinking an eye or squeezing a hand.
Following your mental capacity assessment, The Court of Protection makes a decision based on an assessment of capacity report. The evidence in relation to capacity is usually provided by a doctor, social workers, or other prof