The Mental Capacity Act 2005 governs decision-making on behalf of adults who may not be able to make their own decisions.
This could be because of, for example:
- a learning disability
- an illness such as dementia
- a brain injury
- mental health problems.
It's important to remember these conditions do not in themselves mean that a person lacks the capacity to make a particular decision.
The Act and its codes of practice set out:
- who can take decisions on someone else's behalf
- when and how a decision can be taken
- when and how people who lack capacity to take decisions about their care and welfare can be deprived of their liberty to get the care they need in a hospital or care home.
The Law Commission made recommendations to the government about the Mental Capacity Act and Deprivation of Liberty Safeguards in March 2017, so some amendments may take place in due course.
Who does the Mental Capacity Act affect?
Adults who may lack capacity to make one or more decisions about the way they want to live their life – everyone caring for or supporting someone who is in this position must comply with this Act and its codes of practice.
The Act directly affects the lives of two million disabled people, older people and their carers. It affects the way people are supported wherever they live.
It is important that registered persons and other professionals promote awareness of the Act and are aware of their own responsibilities under it. The codes of practice provide additional information about how to put the Act into practice.
Working within the Act
When a person may lack the mental capacity to make their own decisions at certain times about care, treatment or money, providers must work within the principles of the Mental Capacity Act and ensure appropriate assessments are made, recorded and acted on.
- Use communication aids to assist discussion, some people will then be able to decide for themselves.
- Minimise any restrictions to the freedom of people who do not have capacity to consent to them.
- If restrictions are necessary, they must be proportionate to the risk and seriousness of harm to that person.
Care plans for people lacking mental capacity to agree to arrangements for their care or treatment must show evidence of best interests decision-making in line with the Mental Capacity Act, based on decision-specific capacity assessments.
Deprivation of Liberty Safeguards
If a person in a hospital or care home is under continuous supervision and control and is not free to leave, and they lack the mental capacity to consent to arrangements for their care and treatment, providers should apply for a Deprivation of Liberty with the local authority, and notify CQC if it is authorised.
CQC's role in relation to the MCA and DoLS
- We monitor use of the Mental Capacity Act in all health and care services in England.
- We monitor the use of the Deprivation of Liberty Safeguards (also known as DoLS) in all care homes and hospitals in England.
- We receive notifications from providers about the outcome of DoLS applications.
- We check on the use of DoLS by visiting the places where they are used.