The Mental Capacity Act 2005 (MCA) and the accompanying Mental Capacity Act Code of Practice protects people’s rights to make decisions, and their right to have decisions made in their best interests if they lack capacity to make a specific decision. The Act directly affects the lives of over two million disabled people, older people and their carers. It affects the way people are supported wherever they live.

Everyone working with and/or caring for an adult who may lack capacity to make particular decisions must comply with this Act and its Codes of Practice.
It is important that all health and social care workers adhere to the Act and are aware of their responsibilities under it. The Codes of Practice provide additional information about how to put the Act into practice

(CQC About the Mental Capacity Act 2017)

Regulation 11 of the HSCA states that “Where a person lacks the mental capacity to make an informed decision, or give consent, staff must act following the requirements of the Mental Capacity Act 2005 and associated code of practice”. The associated guidance about the regulation states, “Providers must make sure that staff who obtain the consent of people who use the service are familiar with the principles and codes of conduct associated with the Mental Capacity Act 2005, and are able to apply those when appropriate, for any of the people they are caring for.

(CQC Guidance for Providers on Meeting the Regulations 2015)

This organization uses the MCA and its Code of Practice to ensure we protect people’s decision-making rights and act in their best interests where this is required.

The MCA is one of the few pieces of law that summarizes its entirety and spirit of the Act right at the beginning of the legislation. This is done through the five statutory principles which underpin the values and legal requirements of the Act.
This organization is informed by and uses the five principles to guide all our interactions, care and support.

The five principles are:

This organisation will use the five principles to respect service user’s rights to make a capacitated decision, protect service user’s who lack capacity and help them as much as possible to take part in decision making which affects them. Chapter 2 of the MCA Code of Practice contains helpful further guidance on how staff should apply the statutory principles when using the Act.

In Summary:

(The MCA Code of Practice 2007)

Helping service user’s to make their own decisions directly relates to Principle 1 and 2 of the Act. This organization will assume a service user has capacity unless it is established that they lack capacity (1), and take all practicable steps to enable a service user to make a decision, before deciding that they may lack capacity (2).

The Act states that a service user’s capacity, or lack of capacity refers ‘specifically to their capacity to make a particular decision at the time it needs to be made’. All staff must make sure capacity is decision specific and considered at the time the decision needs to be made.
Chapter 3 of the MCA Code of Practice is dedicated to helping people make their own decisions. In Summary to help a service user make their own decision our staff will:

We all have a right to make our own decisions where we have capacity to do so, and this organisation will adhere to principle 3 of the Act to ensure that our service users rights to make a capacitated decision are respected, even if others believe their decision is unwise. This will make sure our service user’s freedom to determine their actions and retain control over their own lives is respected.

This organisation will adhere to Principle 1 by always presuming a service user has the capacity to make the particular decision at the time it needs to be made. The organisation will also ensure staff understand that capacity must be assessed in relation to a specific decision, and at the time that decision needs to be made.
Staff must treat service users equally. This means that a service user’s capacity must not be judged on their appearance, age, disability, condition or an aspect of their behaviour. It is also important to note that a service user may lack the capacity to make a decision about one issue, but not about others.
These basic tenets must be understood respected and incorporated into the organisation’s practice, at every level, by all members of staff. Anyone who claims that an individual lacks capacity should be able to provide proof. They need to show, that, on the balance of probabilities, the individual lacks the capacity to make a particular decision, at the time it needs to be made. This means being able to show that it is more likely than not that the person lacks capacity to make the decision in question.
All staff involved in assessing, care planning or delivery of care and support will be trained in assessing capacity. A service user’s mental capacity to make specific decisions will form part of their assessment of need. Where there is a concern that a service user lacks the capacity to make a particular decision, a time and decision specific mental capacity assessment will be carried out. The outcome of any mental capacity assessment will be included in the service user’s care plan to ensure our staff are supported by the right guidance and instructions on how best to support the service user.
Care workers will always seek consent before supporting a service user (see consent policy). Care workers will always seek to maximise the service user’s capacity to make day to day decisions, such as what they want to wear, what they want to eat and drink, what time they want to get up and go to bed. They will explain the options to the service user using visual aids (e.g. showing alternative clothing or meal choices) where required, to support the service user’s ability to make their own decision.
Where a service user has been assessed as lacking the capacity to make a specific decision, a best interests decision will be carried out (See Best Interests, below). Care workers should still seek to involve the service user in day to day decisions as much as possible to ensure their views and wishes remain central to their care and support.

The person who assesses the service user’s capacity will usually be the person directly involved with the service user at the time the decision needs to be made. For instance, a care worker might assess the service user’s capacity to agree to support with showering or bathing, whilst the district nurse might assess whether the service user can consent to have a dressing changed.

Therefore, all management, care and support staff will be trained and competent in MCA 2005. This is because different staff will be involved in assessing someone’s capacity to make different decisions, at different times, on a day to day basis. The training will ensure that staff understand the Mental Capacity Act, the Code of Practice and how to apply these to ensure people’s decision making rights are protected. Training will also include communication skills to ensure staff understand how best to support a service user to maximise their ability to make a decision. If staff have any concerns about their ability to effectively communicate with a service user in relation to decision making, they must escalate this to the registered manager who will seek advice and support from a health or social care professional.

To help determine if a person lacks the capacity to make a particular decision at the time it needs to be made, the Act sets out a two-stage test of capacity, which must be undertaken using the appropriate mental capacity assessment forms.

Stage 1: Does the person have an impairment or a disturbance in the functioning of their mind or brain. If the person does NOT have such an impairment or disturbance, they will not lack capacity under the Act and the assessment should stop.
Examples of impairment or disturbance include:

Stage 2: Does the impairment or disturbance mean that the person is unable to make a specific decision when they need to?
For a person to lack capacity to make a decision, the Act says their impairment or disturbance must affect their ability to make the specific decision when they need to. But first people must be given all practical and appropriate support to help them make the decision for themselves (Principle 2).

Stage 2 can only apply if all practical and appropriate support to help the person make the decision has failed.

The MCA Code of Practice provides additional helpful guidance for staff in relation to the two-stage test. If a service user is not able to do one of the first three points (understand, retain, weigh up), they will lack the capacity to make the decision. The fourth point only applies in situations where a service user cannot communicate their decision in any way.

Be aware that the fact that a service user agrees with you or assents to what is proposed does not necessarily mean that they have the capacity to make the decision

Factors that may indicate that a person may regain capacity in the future:

This organisation will not assess the capacity of a service user to make a major or complex decision. These might include medical treatment, where to live or spending large amounts of money, We will seek support and assistance from appropriate health or social care professionals. This may be the GP, a specialist, a social worker, a speech and language therapist and, in some cases, a multi-disciplinary team. This is because complex or major decisions may have serious consequences for a service user, and this organisation is not the appropriate decision maker.

Records of mental capacity assessments will be completed when there is a concern a service user is not able to make a specific decision at the time it needs to be made. These will inform the service user’s care plan and be part of the care plan review. It is important to review capacity assessments from time to time as a service user’s decision making abilities may improve.
Minor day to day decisions such as what to wear, eat or drink does not require a record of the assessment of capacity. Instead, care workers will complete records in the daily notes of the steps they take to maximize and support service user’s to make the specific decision and any decisions they make as part of the day to daycare in the service user’s best interests.

When professionals carry out an assessment of a service user’s capacity to consent or make a decision, a record of the outcome of the assessment will kept in the service user’s plan.

When a situation arises that a service user, family, advocate or other professional challenges the result of the assessment of capacity, the first step is to raise the matter with the person who carried out the assessment. If the service user has been assessed to lack capacity, they should have support from family, friends or an advocate.

Principle 4 of the MCA 2005 is that any decision made on behalf of a person who lacks capacity must be done or made, in that person’s best interests.
This organisation follows these rules:

If a Lasting Power of Attorney (LPA) has been made or a deputy has been appointed under a court order, the attorney or deputy will be the decision-maker, for decisions within the scope of their authority

Whenever possible, the person who lacks capacity will be involved in the decision-making process. Best interests decisions must never be based on discriminatory views or assumptions and must always consider whether the service user might regain capacity, and if so, could the decision be delayed.

A best interests record is kept in the service user’s file and includes:

Where a major best interests decision is required we will work in partnership with health and/or social care professionals who are likely to be the most appropriate decision makers. There are also special rules for life sustaining treatment.

The MCA allows care workers and other health and social care staff to carry out certain tasks in the best interests of the service user who lacks capacity.

However, to be protected from liability staff must have acted as follows:

This organisation will always ensure consent is lawful and informed.
Consent should always be sought from the service user where they have capacity to make a specific decision. Where a service has capacity to consent we will always respect their decision, including refusal of consent.
Helping a service user to make their own decisions directly relates to Principle 1 and 2 of the Act by assuming capacity and taking all practicable steps to enable a service user to make a decision, before deciding that they may lack capacity. Staff must ensure they support our service user’s to consent to a decision by:

Where a service user lacks capacity to consent, this organisation will check whether there is another person with lawful decision-making authority.

This may include someone with a Lasting Power of Attorney (LPA) for property and affairs or personal welfare, or a court appointed deputy. In these circumstances, staff must check the LPA or deputyship documents to check what decision-making powers the attorney or deputy has.

Where a service user lacks capacity and there is no one else with lawful decision-making powers, this organisation will ensure that best interests decisions are made in accordance with the MCA to protect our service users rights and ensure they continue to be at the heart of decision making (see best interests decisions above).

Finally, where there are conflicts, or a decision has not been able to be made, the Court of Protection can make a decision.

Relevant person means the service user or, in the following circumstances, a person lawfully acting on their behalf. This would only be someone with an LPA or a court appointed deputy:

This term is commonly used and there is a presumption that the person identified has certain rights and duties.
Health and social care colleagues should always consult the people closest to a person who lacks the capacity to understand that person’s wishes and feelings to help with best interests decision making.
However, the person identified as NoK should not be asked to sign and/or consent to certain interventions unless they have a legal basis for doing so such as an enduring power of attorney (EPA) or the appropriate LPA, or a deputyship. This is a mistake often made in many hospitals, nursing or service user settings where family members are asked to sign care plans or end of life plans and other treatment options and provide consent that is not legally valid.

This organisation will encourage the service user or responsible person to use an advocate where:

An advance decision enables someone over the age of 18 with the capacity to refuse specified treatment for a time in the future when they may lack the capacity to consent to or refuse the treatment. There are special rules for advance decisions about life sustaining treatment and staff must seek guidance from a health care professional.

If a service user has made an advance decision to refuse treatment the advance decision is kept in their file and health care staff must be informed and they must respect this decision if it is valid and applies to the proposed treatment.

This organisation has a separate restraint policy. However, it is important to note for this policy that staff are using restraint if they:

NB Restraint can be physical, medical and mechanical.

This organization is aware that: any action intended to restrain a service user who lacks capacity will not attract protection from liability unless the following two conditions are met:

The use of restrictions, restraint and physical interventions with service users will be informed by the Mental Capacity Act 2005, only occur where there is a need to protect the service user, staff or bystanders from harm and only where there are no other appropriate alternative strategies.
The intervention used must be used as the last possible option and with the least amount of restraint or restriction, and for the shortest amount of time.
The action must be detailed within the care and support plan and be administered only by appropriately trained and competent staff, and neither intervention, nor the threat of intervention, should ever be used as a form of punishment.
Where restraint of any kind has been used this must be escalated to the registered manager, recorded within the care notes, including date, time, duration, type of restraint, reason, staff members involved in the incident, and any other relevant information.
If the service user or staff member or others are injured then an accident and incident form must be completed, and the Registered Manager informed immediately.
Staff must refer to and follow the organisations’ Restraint Policy.

This organisation has a separate, comprehensive Deprivation of Liberty (DoL) in the community policy. The purpose of the DoL policy is to explain the organisation’s approach to people who use our service, who might lack the mental capacity to make decisions about their care and treatment and who could have their freedom restricted to the point where they are deprived of their liberty as defined by the Cheshire West Supreme Court judgement.
The organisation’s policy has been established to comply with the provisions of the Mental Capacity Act 2005 including the Deprivation of Liberty (DoLS) Safeguards. These have been in force since April 2009. However, DoLS are only applicable in the care home and hospital settings. They cannot be used in community settings. Community settings include supported living, adult placement/shared lives and domiciliary care provided in a service user’s own home. In these settings, an application for a deprivation of liberty order must be made to the Court of Protection. These are sometimes also known as Community DoLS or Judicial Authorisations.

Our organisation is aware of the restrictive factors that indicate a service user may be at risk of being deprived of their liberty. We will take action where we identify this risk, by alerting the local social services community team or the local authority DoLS team as appropriate. This is to ensure that situations involving our service users that may amount to a deprivation of liberty are recognised and acted upon to make sure they are lawful.

This Deprivation of Liberty in Community Settings Policy should be read and used in conjunction with the organisation’s broader Mental Capacity Act Policy.

Accessible Information and Communication
Adult Safeguarding
Advocacy
Consent
Dignity and Respect
Deprivation of Liberty in Community Settings
Meeting Needs
Restraint

MCA Code of Practice:
https://www.gov.uk/government/publications/mental-capacity-act-code-of-practice
SCIE Mental Capacity Act 2005 At a Glance: https://www.scie.org.uk/mca/introduction/mental-capacity-act-2005-at-a-glance
NHS Someone to Speak up for You:
https://www.nhs.uk/conditions/social-care-and-support-guide/help-from-social-services-and-charities/someone-to-speak-up-for-you-advocate/
Lasting Power of Attorney:
https://www.gov.uk/power-of-attorney
Alzheimer’s Society:
https://www.alzheimers.org.uk/get-support/legal-financial/mental-capacity-act
NICE Guideline 108: Decision-making and Mental Capacity:
https://www.nice.org.uk/guidance/ng108
CQC About the Mental Capacity Act 2017
https://www.cqc.org.uk/help-advice/mental-health-capacity/about-mental-capacity-act
CQC Guidance for providers 2015
https://www.cqc.org.uk/sites/default/files/20150324_guidance_providers_meeting_regulations_01.pdf

All staff, during induction, are made aware of the organisation’s policies and procedures, all of which are used for training updates. All policies and procedures are reviewed and amended where necessary, and staff are made aware of any changes. Observations are undertaken to check skills and competencies. Various methods of training are used, including one to one, online, workbook, group meetings, and individual supervisions. External courses are sourced as required.

Date Reviewed: May 2021
Person responsible for updating this policy: Carly Fortune
Next Review Date: May 2022