The mental capacity act (2005) is the main legal provision designed for individuals who are unable to make decisions for themselves. The reason why someone might be deemed unable to make decisions regarding their own care is due to mental health problems affecting their capacity to reason. In the event of this being the case, a mental capacity act assessment must take place prior to any decisions being made on behalf of the individual in question. An assessment is not required by law as needing to take place in every situation, as there are some scenarios whereby waiting to assess a patient before detaining them officially would pose too big of a risk to either themselves or to other people. In these instances, a person would either be sectioned under the mental health act, or they would be temporarily detained under the deprivation of liberty safeguards (DOLS.) The Dols act prevents people from having their liberty taken away without good reason. An example of a reason why someone’s liberty could be taken away (i.e., they were told they could not leave a place) would be if they posed a safeguarding risk.
The outcome of a mental capacity act assessment is underpinned by five key principles. These principles are:
- A presumption of capacity- before deciding whether someone can be detained, everyone must firstly agree that they lack capacity for themselves. This cannot be assumed to be the case, however. People must go into the assessment with the belief that the individual being assessed does have capacity. This is important because failing to treat someone in the correct way does in fact break a fundamental human right- the right that every adult can make their own decisions unless this is proved otherwise. Until the assessment reaches a conclusion, and their capacity can be determined, they must therefore be treated as though they can make decisions for themselves, regardless of whether you personally think they can or not. At this stage, opinion cannot come into it. Everyone must stay objective.
- Individuals being supported to make their own decisions- before one can be deemed as being ‘incapable’ to make their own decisions, every other avenue of help must have been explored. That is to say that someone cannot just be detained and sent to hospital, for hospital treatment should always be a ‘last resort.’ Instead, people should be treated in the community wherever possible, being encouraged and supported to make decisions for themselves. Even in the event of an assessment concluding that an individual does lack capacity to make their own decisions, they must still be involved in the decision-making process.
- Unwise decisions- someone cannot be labelled as having no capacity for making decisions that one may regard as being ‘unwise’, for everyone will have a slightly different definition of the word. What one person might consider to be unwise, another person might perceive as being perfectly fine. Therefore, it is not a reliable measurement to use, as it is very much subjective and dependent on individual values, beliefs, and preferences, all of which can differ from person to person.
- Best interests- principle 4 comes into play when it has been decided, via the assessment process, that someone is lacking capacity. This stage, along with principle 5, supports the decision-making process, whereby a conclusive decision is formed regarding what the best treatment method is. To determine this, a person’s best interests must be considered, to give them the best chance of making a full recovery.
- Less restrictive option- Although the mental health act allows anyone lacking capacity to be detained and made to receive treatment, sometimes against their will, just because you can impose lots of restrictions on them, it does not mean you should. In fact, when deciding the best treatment option for someone lacking capacity, the least restrictive option should be chosen, that being the treatment option that interferes the least with the persons rights and freedoms. Before making any decision, all five principles must be considered, with their best interests weighed up to ensure the best course of action is decided upon.
If an individual knows that in the future they might be sectioned and be deemed unable to make decisions for themselves, they can appoint an attorney whilst they still have capacity. Whoever is appointed as the attorney would be responsible for making any financial or personal decisions on behalf of the patient, should they ever become incapable of doing so themselves. If the individual does not appoint their own attorney, the court of protection can appoint one, and this is the case when the person has lost capacity to appoint their own. The only criterion for an attorney is that they must be over the age of 18, have capacity, and show that they are trustworthy and reliable with the skills and ability to make decisions in an individual’s best interests.
Aside from an attorney, under the mental health act people detained also have the right to request support from an advocate. An advocate refers to a professional whose sole responsibility is to listen to what you want and speak on your behalf. This is particularly helpful for people who lack capacity and therefore may struggle to convey their thoughts across.