MENTAL CAPACITY ACT POLICY 2014
LONDON BOROUGH OF MERTON
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CONTENTS
Title Page
Table of Contents
Introduction
Context
Objective
Scope
Statement of Commitment
Key Principles of the Act
Assessment of Capacity
What is ‘Capacity’?
When to assess
Who should assess
The two stage test
Temporary or Fluctuating Capacity
Duty to Support Decision Making
When to Involve Others
Burden of Proof
What Happens When the Assessment is Completed?
Refusal to be Assessed
Best Interests
Who is the decision-maker?
How does the decision-maker decide what is in a person’s best interests?
Best Interests Checklist
Using the best interests checklist
How to Formalise a Best Interest’s Decision
Implementing The Best Interest’s Decision
Specific Guidance on Best Interests Meetings
Who should chair the meeting?
When to hold the meeting?
What should the meeting cover?
After the meeting
Dispute Resolution
When to Refer For an IMCA
Who instructs an IMCA?
The IMCA’s role
How should assessments be recorded?
Confidentiality and Disclosure
Information Governance
Liability and Staff Protection for Acts Done Under Section 5 MCA
Change of Residence
Healthcare and Treatment
Restraint
Transport
Advance Decisions Regarding Treatment for Customer’s
LPA, Enduring Power of Attorney and Advance Decision
Children
Interface With The Mental Health Act 1983
Policy Overlap
Appendix 1 - Record of Mental Capacity Assessment
Appendix 2 - Record of Best Interests Decision
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Introduction
The Mental Capacity Act 2005 (MCA) for England & Wales provides the legal
framework for acting and making decisions on behalf of people age 16 years and
over, who lack the mental capacity to make decisions for themselves. It is
legislation, and everyone who is caring for or supporting someone who may lack
capacity to make their own decisions must comply with the MCA. This applies to
everyone - paid or unpaid carers, family, friends, trained professionals and care
assistants.
The MCA can be used to make routine and major decisions for someone who lacks
capacity; everything from what to wear to where to live. This places responsibility on
the people making the decisions – but in fact the MCA does not give anyone more
power than previous laws. Decisions have always been made for those people who
can’t make them for themselves: the MCA merely provides a legal framework for
ensuring that decisions are made and recorded in a consistent, transparent way and
in the person’s best interests.
Context
The Act provided for reform of the previous statutory schemes of Enduring Power of
Attorney and of Court of Protection Receivers and created the Office of the Public
Guardian (OPG). It created a new legal framework for Lasting Powers of Attorney
and of Deputies of the Court of Protection, in relation to property & affairs and
personal welfare. The Act further established the legal status of Advanced Decisions
to refuse treatment.
The MCA also brought into effect, under s.44, the creation of a new criminal offence
of wilful neglect or ill-treatment, and the statutory provision of independent Mental
Capacity Advocate Service (IMCA).
The Deprivation of Liberty Safeguards (DoLS) came into effect on 1st April 2009, and
although they were introduced later, they are part of the MCA. The safeguards
provide for the lawful deprivation of liberty of people who lack capacity to consent to
arrangements for their care or treatment in either hospitals or registered care homes,
but who need to be deprived of their liberty in their best interests to protect them
from Harm.
Unlike the main part of the MCA, DoLS applies to people in England & Wales aged
18 years and over. The safeguards and accompanying regulations assign specific
statutory responsibilities to local authorities, Primary Care Trusts (PCT) and care
homes.
Under the Health & Social Care Act 2012, PCTs were abolished from 1st April 2013,
and the way the DoLS were applied in health settings in England changed. The
duties previously held by PCTs were transferred to local authorities. There is
therefore a need to ensure the local authority DoLS Service is aware and
accommodates this need.
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From March 2014, due to a Supreme Court judgement regarding the Cheshire West
case, the threshold for DoLS authorisations lowered meaning any person in a care
home, aged over 18 and lacks capacity that is:
Not free to leave and Is under continuous supervision may be required to have a
DoLS authorisation request. The Deprivation of Liberty policy explains the process
in further detail and should be read in conjunction with this policy.
Objective
The main objective of this document is to ensure compliance with the requirements
of the Mental Capacity Act 2005, associated Codes of Practices, and Schedule 5 to
the Health & Social Care Act 2012, by providing guidance as to the operation of the
Act within the Adult Social Care.
Specifically, this document contains:
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An overall statement of the commitment of London Borough of Merton to the
principles and objectives of the act
A procedure for assessing capacity and making best interest decisions;
A procedure for dispute resolution
General guidance on Advanced Decisions, Lasting Power of Attorney, and the
court of protection
A procedure for management of DoLS from 1 April 2013
A framework for training and quality assurance
A governance structure
Scope
The MCA affects all staff working in health and social care. This policy & procedure
is for staff working within, or on behalf of London Borough of Merton’s Adults Social
Care service, and who are involved in the care and/or treatment of customer’s who
may lack capacity to make decisions. In relation to DoLS, this policy & procedure
applies to both publicly and privately funded care and treatment, in hospitals and
care homes registered under the Care Standards Act 2000.
Statement of Commitment
London Borough of Merton is committed to ensuring that people who use Merton
services and who may lack capacity to make decisions are provided with high quality
care from a knowledgeable and competent workforce. This policy and the following
procedures, aims to ensure that staff understand the requirements of the MCA and
are able to comply with their legal duties.
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Key Principles of The Act
Staff must be aware and mindful of the five principles that underpin the legal
requirements of the MCA when working with people who may lack capacity to
make decisions.1. They are part of the legislation, and therefore, it is a legal
obligation to follow them whenever the MCA is used.
The 5 principles are summarised on below:
1. Assumption of capacity
Every adult has the right to make their own decisions if they have the capacity to
do so. In practice, this means that irrespective of the person’s presentation or
diagnosis, staff must assume that the person has capacity to make decisions, until
they have established otherwise. Staff who believe that a person lacks
capacity must be able to prove their case.
2. Support to make decisions
Before concluding that individuals lack capacity to make a particular decision, it is
important for staff to take all possible steps to try to help them reach a decision
themselves. This principle aims to stop people being automatically labelled as
lacking capacity to make particular decisions.
3. Right to make unwise decisions
Everybody has their own values, beliefs, preferences and attitudes. People have
the right to make decisions that others might think are unwise. A person who
makes a decision that others think is unwise should not automatically be labeled
as lacking the capacity to make a decision. Therefore, what matters is the ability to
make a decision and not the outcome. Practitioners may need to exercise some
caution when operating this principle in practice. While an unwise decision should
not in itself be sufficient to indicate a lack of capacity, it may be sufficient to raise
doubt about the person’s capacity.
4. Best Interests principle
Any act done for, or any decision made on behalf of a person who lacks capacity,
must be in their best interests. It is important to note that this does not simply
involve family or professionals imposing their view of ‘best interests’ on the person
that lacks capacity to make the decision. Reference should be made to the
statutory best interests’ checklist.
5. Least restrictive option
Any act done for, or any decision made on behalf of, someone who lacks capacity
must be an option that is the least restrictive of their basic rights and freedoms.
Before somebody makes a decision or acts on behalf of a person who lacks
capacity to make that decision or consent to the act, they must always question if
they can do something else that would interfere less with the person’s basic rights
and freedoms.
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MCA Code of Practice 2005 Chapter 2
5
Assessment of Capacity
Assessment of capacity is central to the Act. The Act sets out a single test for
assessing whether a person lacks capacity to take a particular decision at a
particular time based on the principles detailed previously.
It is only possible to make decisions on behalf of a customer if it has clearly been
determined that they lack capacity to decide for themselves. This section gives
specific guidance to staff about assessing capacity.
What is ‘Capacity’?
The MCA defines a lack of capacity by stating that:
“a person lacks capacity in relation to a matter if at the material time he is
unable to make a decision for himself in relation to the matter because of an
impairment in the functioning of the mind or brain”2
Capacity is therefore decision-specific and time-specific and the inability to make the
decision in question must be because of an ‘impairment of, or a disturbance in the
functioning of the mind or brain’.
When to assess?
An assessment of a person’s capacity should be carried out when there is doubt
about a person’s ability to make a specific decision at the time it needs to be made. 3
The code of practice states that there are a number of reasons why people may
question a person’s capacity to make a specific decision:
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The person’s behaviour or circumstances cause doubt as to whether they
have capacity to make a decision
Somebody else says they are concerned about the person’s capacity
The person has previously been diagnosed with an impairment or disturbance
that affects the way their mind or brain works, and it has already been shown
they lack capacity to make other decisions in their life4
Who should assess?
The MCA stipulates that the person who assesses capacity to make a decision will
usually be the person who is directly concerned with the individual at the time the
decision needs to be made5.
In practice this means that family members and carers are responsible for assessing
capacity when a decision needs to be made about day-to-day care, such as what
2
MCA S2(1); Code of practice 4.3
4.4 code of practice
4
Code of practice 4.35
5
MCA code 4.38
3
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clothes to wear on a particular day. The MCA does not require people who provide
day-to-day care to undertake a formal capacity assessment each time they deliver
care. Instead, they need to have ‘reasonable belief’ that the person lacks capacity for
the specific decision.
Professionals are responsible for assessing capacity for actions they are proposing.
This means, for example, that a nurse will be responsible for assessing a person’s
capacity to consent if they are proposing a particular treatment or intervention, and a
social care professional will be responsible for assessing a person’s capacity if a
decision needs to be made about a move into residential care.
A Court of Protection Deputy or Lasting Power of Attorney may be responsible for
assessing capacity for decisions that fall within the scope of their authority.
The two stage test
The MCA introduced a 2-stage process for assessing capacity:
Stage 1: Is the person unable to make a specific decision at the time it needs to be
made (the functional test).
If so;
Stage 2: Is it because of an impairment of, or a disturbance in the functioning of their
mind or brain? For example, a disability, condition or trauma that affects the way
their mind or brain works (the diagnostic test).
Stage 1 (the functional test) – Is the person unable to make a specific decision
at the time it needs to be made.
This stage of the assessment considers whether the person can make the specific
decision at the time it needs to be made. The first step of the functional test is to be
clear what the decision is that needs to be made. If it is a complex situation, there
may need to be several capacity assessments concerning different decisions.
The assessor then needs to establish whether the person can:
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Understand information relevant to the decision: Relevant information
includes the nature of the decision, the reason why the decision is needed
and the likely effects of deciding one way or another, or making no
decision at all
Retain that information in their mind: A person must be able to hold the
information in their mind long enough to use it to make a decision. It does
not matter that they could not remember the information prior to the
discussion or remember it afterwards, but they do need to be able to keep
key pieces of information in their mind at one time, in order to be able to
weigh them up
Weigh or use that information as part of the decision-making process: In
addition to understanding relevant information, people must have the
ability to weight it up and use it to arrive at decision. Sometimes an
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impairment or disturbance may cause a person to inevitably arrive at one
decision. Although they understand the information, they cannot use it as
part of the decision making process
Communicate their decisions by any means: This will only apply if a
person is unable to communicate their decision in any way at all.
Stage 2 (the diagnostic test): Is it because of an impairment of, or a
disturbance in the functioning of their mind or brain? For example, a disability,
condition or trauma that affects the way their mind or brain works
This requires evidence that there is an impairment of the person’s mind or brain, or a
disturbance that affects the way the person’s mind or brain works. An impairment or
disturbance may include, for example, dementia, significant learning disabilities,
brain injury, concussion following a head injury, the effects of stroke, brain tumours,
physical and medical conditions that cause confusion, drowsiness or loss of
consciousness, neurological disorder, conditions associated with some forms of
mental illness, delirium, and the effects of drug or alcohol use.
Most people at some point will be covered by this diagnostic test and some people
will also come within it. This does not necessarily mean that the person lacks
capacity to make a specific decision at a particular point in time.
Temporary or Fluctuating Capacity
The MCA Code of Practice6 makes specific reference to people with fluctuating or
temporary capacity. Staff must consider whether the customer’s lack of capacity is
temporary. This might be due to the effects of drug or alcohol use, or acute illness.
For example, a person with a psychotic illness may have delusions that affect their
capacity to make decisions at certain times but disappear at others. A urinary tract
infection can cause a person to temporarily lose capacity to make decisions. What is
relevant is the person’s ability to make a specific decision at a specific time. In cases
of temporary or fluctuating capacity, staff must consider whether it is possible to
postpone the specific decision until a later date when a person might have capacity
to make it. In an urgent situation, it might not be possible to postpone the decision.
Staff must then ensure that they review the person’s capacity to make the decision at
a suitable future date.
Duty to Support Decision Making
Following principle 2, “a person is not to be treated as unable to make a decision
unless all practicable steps to help him to do so have been taken without success.”
Before reaching the conclusion that a person lacks capacity to make a specific
decision, it is the responsibility of staff to do everything they can to enable the person
the best chance of making their own decision. This would involve asking the
following questions:
6
4.26 & 4.27
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Does the person being assessed have all the relevant information they need
to make the decision?
If they are making a decision that involves choosing between alternatives, do
they have information on all the options?
Would the person have a better understanding if information was explained or
presented in another way?
Are there times of day when the person’s understanding is better?
Are there locations where they may feel more at ease?
Can the decision be put off until the circumstances are different and the
person concerned may be able to make the decision?
Can anyone else help the person to make choices or express a view? (for
example, a family member or carer, and advocate or someone to help with
communication)
(Reference: code of practice 4.36)
When to Involve Other People
It may be appropriate and necessary for the person assessing capacity to enlist the
help of others. For example, a social care professional assessing a person’s capacity
to make decisions about their care needs when being discharged may need to seek
an opinion from family and friends, ward staff, or anyone with knowledge of the
person.
The assessor may also need to ask for an opinion from a professional who has
specialist training or knowledge about a particular condition or disorder. For
example, a Speech & Language Therapist might be able to help if there are
communication difficulties; or a clinical psychologist specialising in learning
disabilities, might be able to offer an opinion about a person understands
The final decision about a person’s capacity must be made by the person intending
to make the decision or carry out the action on behalf of the person who lacks
capacity, and not the professional who is there to advise.
Burden of Proof
Capacity assessments are decided on balance of probabilities. In practice, this
means deciding whether, on balance, the individual is more likely to have capacity or
more likely to lack capacity to make the decision.
What Happens When The Assessment is Completed?
If the assessor concludes that the person has capacity to make the decision or could
be supported to make the decision themselves, no further action can be taken under
the MCA.
If the conclusion is that the person lacks capacity to make the decision then a
decision will need to be made in the persons best interests.
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The assessment should be recorded on the council’s mental capacity form
(Appendix 1).
Refusal to be Assessed
There may be circumstances in which a person whose capacity is in doubt refuses to
undergo an assessment of capacity. The code of practice makes it clear that nobody
can be forced to undergo an assessment of capacity, and if someone refuses to
open the door to their home, it cannot be forced.
There are a number of steps that should be considered if a person refuses to engage
in the assessment:
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If applicable, re-allocate to another social care professional
Consider whether anyone else can facilitate access. This might be a friend
neighbour, family member of other professional who the person engages with
Consider whether there is another professional that the person engages with
and who, so they could give an opinion about the person’s capacity
Consider whether there is an alternative venue. For example, a GP surgery or
day centre
If all attempts to engage the person fail, it will be necessary to gather evidence about
the customer’s capacity from:
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Anything they have written which gives insight into their capacity to make the
specific decision
Any witness who can give information about the customer’s capacity to make
the decision in question. This could be from family, friends, neighbours, or
professionals
Where there are serious concerns about the persons mental health, contact SouthWest London & St Georges Mental Health Trust, Approved Mental Health
Practitioner team for advice about whether the situation requires use of the Mental
Health Act 1983.
The Service Manager for Access & Assessment and Safeguarding Adults and DoLS
Manager must be notified of any situation in which a person refuses to undergo an
assessment of capacity, and there are serious concerns about their safety and wellbeing. The safeguarding adults / DoLS Manager will provide advice and guidance
on the way forward and if necessary will seek legal advice.
Best Interests
When it is established that a Customer lacks capacity to make a particular decision,
the MCA establishes ‘best interests’ as the criterion for any action taken or decision
made on that person’s behalf. It requires the decision maker to think what the best
course of action is for the person. It should not be the personal views of the decision
maker. Instead it considers both the current and future interests of the person who
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lacks capacity, weighs them up and decides what course of action is, on balance, the
best course of action for them.7
Who is the decision-maker?
The person who decides what is in a person’s best interests is referred to in the MCA
as the ‘decision-maker’. The decision maker is the person who is proposing the
service or element of care.
Under the MCA, many different people may be required to make decisions or act on
behalf of someone who lacks capacity to make decisions themselves in relation to
certain things:
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Most routine decisions, this will usually be the person caring or supporting the
person on a day to day basis
For medical interventions, it would be the Doctor or whoever is responsible for
carrying out the particular treatment or procedure
For social services care plans, the best interest’s decision maker will be the
relevant social care professional
An LPA or deputy will be decision maker within the scope of their authority
How does the decision-maker decide what is in a person’s best interests?
There is no definition of ‘best interests’ in the MCA. Instead, s.4 of the MCA sets out
a ‘checklist’ of factors that the decision maker must apply when determining what is
in a person’s best interests (the best interests checklist). Staff must follow this
checklist when making a best interests decision.
Points to consider when using the best interests checklist
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The decision must not be made merely on the basis of the person’s age or
appearance
The person’s behaviour should not lead to assumptions about what might be
in their best interests
Have all relevant circumstances been considered?
Consideration must be given as to whether the person will regain capacity and
if so, can the decision wait?
BPS guidance
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Best Interests Checklist
Criterion
Encourage
Participation
Guidance
Make every effort to permit and encourage the customer to
participate in the decision to be made. Staff may need to seek
support from family members, friends or other professionals to
facilitate participation.
Identify all
relevant
circumstances
Find out the
person’s wishes,
feelings, beliefs
and values
Try to identify all the issues and circumstances relating to the
decision in question which are most relevant to the customer.
Try to find out the person’s past and present wishes and feelings –
both current views and whether any relevant views have been
expressed in the past, either verbally, in writing or through
behaviour or habits.
Any beliefs and values (e.g. religious, cultural, moral or political)
that would be likely to influence the decision in question.
Any other factors the person would be likely to consider if they
could make the decision themselves. This could include the impact
of the decision on other people, such as dependents.
It is important that the decision-maker understands that they are not
trying to take the choice that they think the person would have
made. Instead, the decision-maker is taking the person’s views into
account as a factor in making the best interest’s decision making
process.
Avoid
discrimination
Assess whether
the person might
regain capacity
If the decision
concerns lifesustaining
treatment
Consult others
Working out best interests cannot be based simply upon age,
appearance, condition or behaviour. Staff therefore needs to take
care not to make assumptions about what is in a persons best
interests. For example, assuming that people with learning
disabilities are better off not living with their parents would be
discriminatory if applied to all customers irrespective of their
individual circumstances.
Consider whether the person is likely to regain capacity and if so,
whether the decision can be delayed. For example, staff will need
to address whether the person’s condition will improve for
treatment.
Not be motivated in any way by a desire to bring about the person’s
death. They should not make assumptions about the person’s
quality of life (This only applies to medical decisions, and LBM staff
will not be the best interests decision-maker when a decision needs
to be made about life sustaining treatment).
For views about the customer’s best interests and to see if they
have any information about the person’s wishes, feelings, beliefs or
values. Staff must consult:
 Anyone previously named by the person as someone to be
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Avoid restricting
the person’s
rights
Take all of this
into account
consulted on the decision in question or matters of a similar
kind;
Anyone engaged in caring for the person, or close relatives,
friends or others who take an interest in a person’s welfare
Any attorney or Lasting Power of Attorney (LPA) made by
the person (even if they are not the decision-maker for this
specific decision).
Any deputy appointed by the Court of Protection to make
decisions for the person (even if they are not the decisionmaker for this specific decision).
An Independent Mental Capacity Advocate (IMCA) in
prescribed circumstances
Reasons where consultation may not be practicable or appropriate
may include the following:
 The person lives abroad and has no contact with the service
user;
 An estranged relative
 A family member who refuses to be consulted.
The decision maker must assess whether there is a less restrictive
option. The decision-maker should be open to all options, and for
each identify the risks, and whether restricting the customer’s rights
would be a proportionate response to the level of risk. For example
when a person lacks capacity to make a decision about where they
should live, the options might be: staying in their present
accommodation with a higher level of care, moving to residential or
nursing care, living with relatives or moving to extra-care housing.
The decision maker needs to weigh up all of these factors in order
to work out what is in a person’s best interests. It is helpful to use a
‘balance sheet’. This involves drawing up a list of the emotional,
medical, social and welfare benefits and disadvantages of the
proposed alternatives (including the likelihood of each benefit or
disadvantage occurring).
Using the best interests checklist
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The MCA gives the decision maker authority to make a best interests
decision, as long as they have reasonable belief that what they have decided
is in the customer’s best interest, and they have complied with the
requirements of the checklist
The decision-maker must consult and involve other relevant people as much
as possible
The decision-maker does not have to follow the view of anyone else, but
needs to be able to provide a clear and well-reasoned rationale for
discounting the views of others
Do not avoid consulting with people who may disagree with the decision
maker or where there may be an apparent conflict of interest. For example, if
a family member is financially abusing a person who lacks capacity to
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manage their finances, the decision-maker should still consult them before
discounting their views
A best interest’s decision needs to consider a holistic assessment of the
individual. For example, if an admission to residential care is indicated by an
assessment of need, this may not be in the person’s best interests when the
stress of the admission is considered
How to Formalise a Best Interest’s Decision
The MCA does not prescribe the process by which a best interest’s decision should
be made. The circumstances of each case will be different, and the decision-maker
will need to refer to the following local guidelines in deciding the process to use for
making a best interests decision:
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For routine or non-contentious decisions, staff can meet the requirements of
the best interests’ checklist without the need to hold a formal meeting. This
might involve consulting with relevant people in person or by telephone. A
best interests decision may be included as part of a wider multi-disciplinary
meeting, such as a discharge planning meeting. Whatever method is used,
the decision-maker will need to ensure that participants understand that they
are contributing to the best interest’s decision making process and be
informed of the outcome
For decisions that are complex or contentious decisions, a formal best
interests meeting will be required (see specific guidance below). This
includes (but is not limited to):
o Accommodation changes
o Proposed management of financial or property affairs
o Any proposal that would intervene in a customer’s family life or
personal relationships
o Where the person concerned is repeatedly making decisions that place
him or herself at risk or could result in preventable suffering or harm
Implementing The Best Interest’s Decision
In some instances it may not be possible to act on behalf of a person who lacks
capacity without using some form of restriction or restraint. Section 6 of the MCA
permits the use of restraint in circumstances where it is:
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proportionate to the risk of harm
absolutely necessary at the time
in the person’s best interests
A restriction could include anything from an instruction to physical or chemical
restraint. Chapter 6 of The Code of Practice outlines the types of restraint that may
be used under the MCA. It does not sanction restrictions or restraints that are so
intense that the person’s right to liberty under article 5 of the European Convention
of Human Rights is breached. If a person needs to be deprived of their liberty in
order to receive care or treatment deemed to be in their best interest authorisation
must be sought. Please refer to the council’s DoLS policy.
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Specific Guidance on Best Interests Meetings
Who should chair the meeting?
The decision-maker may not be the best person to chair the meeting, as they will
probably need to give a lot of information at the meeting. The meeting should be
chaired by someone with the necessary skills and experience to manage a complex
meeting, such as an Assistant Team Manager or Team Manager.
When to hold the meeting?
The meeting needs to be held at the time the decision needs to be made, while still
allowing sufficient time for the decision to be acted upon. This means that it should
not be so far in advance that circumstances might have changed by the time the
decision needs to be acted upon. If the decision can be delayed until the customer
has regained capacity, then this should happen. However, the meeting must not be
postponed in the hope that a customer may regain capacity if this will place them at
unnecessary risk.
Before the meeting the Chair should liaise with the decision maker to:
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Check there is an appropriate and valid capacity assessment
Be clear exactly what the decision is and confirm it is not an excluded
decision
Confirm the decision maker has authority to implement the decision.
Be clear what information is necessary to make the decision
Plan the meeting – where will it be held? When should it happen? Who needs
to attend? Who can represent the views of anyone who can’t attend? Who will
take minutes?
If the person who lacks capacity is to attend, what support do they need?
They may need help to understand the purpose and process of the meeting;
they may need support to present their views
If any family or friends are to attend, do they need any support?
Prepare an agenda
What should the meeting cover?
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Introductions
A statement about the confidentiality of the information to be discussed and of
the minutes
Clarification of the purpose of the meeting – what is the decision that is to be
made?
Confirmation of the capacity assessment
Review of the Best Interests Checklist – to make sure everyone is clear about
their statutory responsibilities under the MCA
Information from relevant parties. What does the person who lacks capacity
want now? What is known about their previous wishes, their values and
beliefs? Views from anyone named, any LPA, EPA or deputy. Views from any
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IMCA or other advocate. Views from any family, friends or supporters. Views
of any professionals. Any other relevant information (s4 MCA)
Discussion. The Chair will need to ensure that everyone can participate
Summary – It will be the Chair’s role to summarise the information and
discussion
Decision of the meeting about the person’s best interests. The decision maker
is still responsible for making the decision. The decision maker is not obliged
to follow the decision of the meeting – but would need to give clear reasons
why they did not do so (see above authority of decision maker)
Action plan. It may be that the meeting asks for further assessments or
reports and will reconvene. There may need to be interim decisions made
about the person’s safety or care. Other actions or decisions may become
clear during the Best Interests Meeting
If an agreement at the meeting cannot be made, decisions will need to be
made about how to proceed
Make sure the priority remains the welfare and safety of the person whose
best interests are being assessed
Participants to be given info on how to challenge
After the meeting:
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Ensure an accurate record of the meeting is prepared
Ensure this record is distributed to everyone who attends or who gave
apologies
If further Actions have been agreed, monitor that these are completed
It is important to remember that the meeting is not authorised to make the decision to
carry out the intervention - that is the responsibility of the person that is going to be
carrying it out. The meeting is there to ensure that the decision is made based on all
reasonable and appropriate information. If the decision-maker does not agree with
the outcome of the meeting they cannot be forced to carry out an intervention in
which they do not agree. However, they should also not prevent another person from
carrying it out. They are not obliged to follow what is decided in the meeting,
although they would need to be able to give good reasons as to why.
Dispute Resolution
There will be occasions when parties fail to reach agreement on a major decision
due to uncertainty or disagreement. The dispute resolution procedure should be
followed when:
A best interest meeting has failed to reach consensus on a person’s best interests,
and the decision-maker cannot decide;
Or;
One of more parties disagrees with the conclusion of the decision-maker AND The
person is at risk of harm if a best interests decision is not made and implemented.
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Local policy is to refer to the safeguarding adult’s team with details of the dispute.
The safeguarding team will review the capacity assessment and best interest’s
decision to ensure that the decision maker has used the 2 stage test of capacity and
followed the best interest’s checklist. Subsequently, the safeguarding team will give
further instructions on how to proceed in resolving the issue.
The capacity assessment will be repeated with support from a BIA (best interest’s
assessor under DoLS) and a second opinion will be sought.
A best interests case conference should be held, and chaired by the safeguarding
adults manager or DoLS and Mental Capacity Act Coordinator.
A referral to the IMCA service can be made to assist with disputed decisions when
the person would not otherwise be eligible for their support. The IMCA will give an
independent opinion to assist with disputed decisions when the incapacitated person
would not otherwise be eligible for their support. However, this is subject to the
availability of the IMCA team.
It may be possible to use mediation to enable people to consider a difficult decision.
Consider whether any local services can offer mediation.
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Referral to the IMCA service to assist with disputed decisions when the
person would not otherwise be eligible for their support. The IMCA will give an
independent opinion to assist with disputed decisions when the incapacitated
person would not otherwise be eligible for their support. However, this is
subject to the availability of the IMCA team
It may be possible to use mediation to enable people to consider a difficult
decision. Consider whether any local services can offer mediation
When to Refer for an IMCA (Independent Mental Capacity Advocate)
The Act places a legal duty on local authorities and the NHS to refer a person to an
IMCA in certain circumstances. The aim of the IMCA is to provide independent
safeguards for people who lack capacity to make certain important decisions and
have no one else to represent them, at the time such decisions need to be made.
It is mandatory for an IMCA to be instructed, and then consulted for people lacking
capacity who have no-one else to support them other than paid staff, whenever:
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The person will stay in hospital for longer than 28 days;
Permanent or long-term changes of accommodation (this means if the
accommodation will be provided for more than 8 weeks)
Serious medical treatment
It is discretionary for the decision-maker to instruct an IMCA for the following
decisions:
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Care plan reviews, where no one else if available to be consulted
Protective measures as part of a safeguarding adults case, whether or not
family, friends or others are involved
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Who instructs for an IMCA?
An instruction for an IMCA must come from the decision-maker. It cannot be
delegated to another professional. For example, a Doctor cannot instruct an IMCA
for a decision about residential accommodation.
The IMCAs role
The IMCA will meet with the customer, discuss with anyone who may have
information, look at medical and other notes. They will try to assist the person to
express their views and support them through the decision making process. They will
prepare a report for the decision maker.
The IMCA does not make the decision, but provides an opinion. The decision-maker
must take this into account as part of the process of working out whether a proposed
decision is in customer’s best interests. As with any other consultant, the decision
maker does not have to follow the IMCA’s opinion.
How should assessments and decisions be recorded?
There is a Merton template to record mental capacity assessments and Best Interest
Meetings. It is expected that Merton Practitioners use these templates to ensure
consistency and quality in assessments across the borough. It is the expectation
that these records are saved in the customer file (See Appendix 1 and 2).
Confidentiality and Disclosure
Staff may only disclose information about somebody who lacks capacity to
consent to its disclosure when it is in the person’s best interests to do so (or when
there are other lawful reasons to do so) [Chapter 5 of the Code of Practice].
Information can be disclosed to LPAs and court deputies if it applies to the
decision(s) for which the attorney or deputy has legal authority. Detailed requests
should be in writing.
Copies of all relevant health or care records can be provided to the Public
Guardian or Court of Protection visitor, as well as what the record holder thinks
may be relevant to the specific decision can be provided to IMCAs
Information Governance
People caring for, or managing the finances of, someone who lacks capacity may
need information to:
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assess the person’s capacity to make a specific decision
determine the person’s best interests, and
make appropriate decisions on the person’s behalf
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When receiving requests for personal information about someone who may lack
capacity, practitioners must have regard to the Data Protection Act and relevant
local policy. In addition the Mental Capacity Act Code of Practice will provide
guidance.
It is only lawful to reveal someone’s personal information if:
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there is a legitimate aim in doing so
a democratic society would think it necessary to do so, and
the kind and amount of information disclosed is in relation to the need
For further advice contact should be made with the relevant Information Governance
Team.
Liability and Staff Protection for acts Done Under Section 5 MCA
Staff will not be liable because they have not got consent for a course of action in
connection with care and treatment (apart from restraint: see below) as long as they:
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take ‘reasonable steps’ to determine whether the person lacks
capacity to consent to the action
have a reasonable belief that the person lacks capacity in that context
Have considered the Best Interests of that person and are acting within the
Five Principles of the Act (see 1.4 above)
Do not contravene the wishes of an LPA or deputy, or a valid and
applicable Advance Decision to Refuse Treatment
This protection is limited to undertaking acts without the consent of a person. It
does not protect against the ‘standard’ liability for loss or damage or
negligence – either in carrying out a particular act or by failing to act where
necessary.
Change of Residence
Staff should follow the two-stage capacity test and best Interests guidance, and
consider referral to an IMCA, if a change of residence is proposed for a person
who lacks (or may lack) capacity about such a change.
Staff should fully assess capacity and best interests where complex community care
packages are proposed, especially when there are concerns about risk. The
assessments should be recorded.
If there is serious disagreement among proper decision-makers, despite IMCA
referral and case meetings, referral to the Court of Protection for a Best
Interests decision may be necessary. Section 6 (see below) provides clear limits to
the use of force or restraint, for example when helping someone move, nor
should a Section 5 action amount to a Deprivation of Liberty.
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Healthcare and treatment
The Code of Practice distinguishes between urgent treatment and
treatments with serious implications which require special consideration. The
courts will be supportive of healthcare professionals who act in good faith to treat
people lacking capacity in urgent situations, unless those professionals are aware of
clear reasons why the treatment should not be given. The courts will expect
professionals to have considered capacity and best-interests in line with the MCA
and Code of Practice in managing people who lack capacity and in whom
treatments with serious implications are being considered.
Restraint
The Act defines restraint as ‘using (or threatening to use) force to do an act which
the person resists’ or ‘restricting the liberty of movement of someone who lacks
capacity whether or not the person resists’. Restraint can be verbal or physical
(for example, threatening a person with an action, holding them down, locking them
in a room, or sedating them).
The Act allows a limited degree of restraint when carrying out care or treatment
only if there is reasonable belief that it is necessary to prevent harm to the
person. The restraint must be proportionate to the likelihood and seriousness of
harm.
Restraint (or restriction) should not be frequent, cumulative or on-going since this
may amount to a Deprivation of Liberty (DoL). The Deprivation of Liberty
Addendum to the Mental Capacity Act (April 2009) requires that specific
authorisation be sought by any individual or organisation restraining or restricting a
person in such a way as to deprive them of their liberty.
Transport
Health and social care professionals and police and ambulance personnel need to
take reasonable steps to ascertain capacity to consent and make a best- interests
decisions to transport. In general it is lawful to convey people who lack capacity
as long as it is done to prevent harm and that it is proportionate to the
seriousness of harm (the expectation of prior assessment is lower in urgent
or emergency situations).
People cannot be transported for treatment if they have made a valid and applicable
advance decision to refuse treatment.
Health and safety considerations, lone working, insurance provision and appropriate
risk assessments continue to have primacy when transporting vulnerable people.
Informal Carers can convey a person without specific consent as long as they
have taken reasonable steps to ascertain that the person lacks capacity to agree to
be conveyed, and that it is in their best interests to be conveyed.
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Advance Decisions Regarding Treatment for Customer’s
The Act supports the use of advance statements, in which people record their
wishes and preferences for care and treatment while they still have capacity.
General advance statements need not be in writing, but a valid advanced decision
about life-sustaining treatment has to be in writing, signed and witnessed. Such
advance statements can be withdrawn or altered while the person still has capacity
to do so.
Staff will need to make reasonable efforts (including if necessary contacting the
Office of the Public Guardian) to ascertain whether service users have an LPA, or
Court Deputy or Advance Statement or valid ADRT is in place.
LPA, Enduring Power of Attorney and Advance Decision
Existing Enduring Powers of Attorney are still valid after October 2007. An LPA is
a formal process by which a person gives a person(s) they trust authority to make
decisions on their behalf should they lose capacity in the future. An LPA must be
registered with the Office of the Public Guardian before use.
Property and Affairs LPAs deal with finance, and Personal Welfare LPAs deal
with personal care issues (including decisions on medical treatment). Clinicians
should consider discussing LPAs with patients, but must not use undue pressure.
Staff that are concerned that service users may have an EPAs, LPAs or deputy
should contact the Office of the Public Guardian to check they are registered.
Advance Decisions that are applicable and valid still apply unless they relate to
treatment for mental disorder following detention under the MHA when the MHA
takes precedence.
Children
The term ‘children’ is used for people under the age of 16, and ‘ y o u n g
people’ for those aged 16 and 17.
Children under 16
In most situations the care and welfare of children under 16 will continue to be dealt
with under the Children Act 1989. However under the MCA the Court of
Protection can make decisions concerning the property and affairs of a child under
the age of 16, where it considers it likely that the child will lack capacity to make
decisions about their property and affairs even when they are 18.
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Young People aged 16 and 17
Most of the provisions of the MCA (including requirement for IMCA) apply to people
aged 16 & over. However only persons aged 18 or over can make a Lasting Power
of Attorney, an advance decision to refuse treatment, or a Will.
Some young people who lack capacity, and who have no family or friends able to
support them appropriately, will already be using an advocacy service. The
decision-maker has discretion to decide whether connection with such advocates is
sufficiently robust to constitute an appropriate support for an otherwise
‘unbefriended’ young person facing the sort of decisions that might require an IMCA.
Working with parents who may lack capacity
Health and social care staff working with children and young people w h o s e
parents may lack capacity in relation to important decisions will need t o b e aware
of the principles of the Act and the Code of Practice.
Interface With The Mental Health Act 1983
Professionals may need to think about using the MHA to detain a person and treat
their mental disorder if they lack capacity to consent to treatment (rather than use
the MCA), if:
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it is not possible to give the person the care or treatment they need without
doing something that might deprive them of their liberty
the person needs treatment that cannot be given under the MCA (for
example, because the person has made a valid and applicable advance
decision to refuse an essential part of treatment)
the person may need to be restrained in a way that is not allowed under the
MCA
it is not possible to assess or treat the person safely or effectively without
treatment being compulsory (perhaps because the person is expected to
regain capacity to consent, but might then refuse to give consent)
the person lacks capacity to decide on some elements of the treatment but
has capacity to refuse a vital part of it – and they have done so, or
there is some other reason why the person might not get treatment, and they
or somebody else might suffer harm as a result
If the person is a resident anywhere other than in a Psychiatric Ward, before making
an application under the MHA, decision-makers should consider whether they could
achieve their aims safely and effectively by using the MCA instead.
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Policy Overlap
Reference should be made to other relevant local policies which may overlap with
this Mental Capacity Act policy.
Relevant Policy will include the following (not exhaustive list)
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Deprivation of Liberty Safeguards Policy
Hoarding Protocol
High Risk Service Protocol
Recording policy
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Mental Capacity Act 2005
Record of Mental Capacity Assessment
Guidance:
This form is to be used to record a capacity assessment, when a major decision needs to be taken, and
there is concern that the person may lack capacity to make the specific decision. It should be
completed by the relevant Decision Maker (who fulfils this role will depend upon the nature of the
decision but it is important that this is clarified from the outset).
The Decision Maker is responsible for the assessment of mental capacity but can seek the views of
others who know the person to help them. Referrals to specialist mental health or learning disability
professionals may be needed in some particularly complex cases but is expected that staff will have the
necessary skills to carry out mental capacity assessments in most situations. Where a referral for
specialist input is needed, the decision maker remains responsible for reaching the final decision about
a person’s capacity, and not the professional who is there to advise.
Click here for the Mental Capacity Act 2005 code of practice.
1. Basic details
Customer name:
Carefirst ID:
Date of birth:
Name of assessor:
Job title:
2. Background information
What has prompted this assessment (include a summary of relevant history)?
What is the specific decision that needs to be made?
3. Stage 1 assessment of capacity
Is there an impairment of, or a disturbance in, the functioning of their mind or brain?
Please select
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What is the evidence for this impairment or disturbance?
If the person does not have impairment or disturbance in the functioning of their mind or brain, then
you should assume that the person has capacity to make the decision. If this is the case go to section
7. Otherwise, proceed to section 4.
4. Support with decision making
Can the decision be delayed until the person recovers or gains skills to make the decision themself?
(This would apply if a person has fluctuating or temporary capacity)
Yes
No
Comment:
What information was given to the person to help them make the decision? (This would include:
information about the different options and their likely consequences)
How were communication needs addressed? (For example: use of interpreters, symbols or pictures, large print,
and/or assisted by Speech & Language Therapist)
What additional actions were taken to enhance the person’s capacity? (This may include: meeting at a
specific venue or time of day, ensuring the person has support from a family member or advocate)
5. Stage 2: does the impairment or disturbance mean that the person is unable to make a specific
decision when they need to?
Date of interview(s):
Location of interview(s):
Does the person understand relevant information about the decision to be made?
Yes
No
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Evidence:
Can the person retain information for long enough to use it to make the decision?
Yes
No
Evidence:
he was able to remember his previous experience
Can the person use and weigh information as part of the decision making process?
Yes
No
Evidence:
Can the person communicate their decision by any means?
Yes
No
Evidence:
A ‘No’ answer in any of the 4 domains above constitutes incapacity
6. Involvement of others
(Give name, relationship and views about person’s capacity)
Name
Relationship/discipline
Stated views
7. Assessment summary
Signature of Decision maker:
Date:
If the person has been assessed as lacking mental capacity, the Decision Maker should now use the
best interests’ checklist to make the decision
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Mental Capacity Act 2005
Record of Best Interests Decision
Guidance:
This form should only be used once it has been established that the person lacks mental
capacity to make the specific decision at the time it needs to be made.
The decision maker is responsible for assessing the capacity of the relevant person and for
making a decision in the person’s best interests. The decision maker should use this form to
evidence that they have met the statutory requirements of the best interests checklist.
The following people should be consulted when determining best interests:
 anyone named by the person as someone to be consulted on the matter in question
 anyone engaged in caring for the person
 anyone with an interest in their welfare including close relatives
 an attorney appointed under a Lasting Power of Attorney or Enduring Power of Attorney
 any deputy appointed for the person by the Court of Protection
An Independent Mental Capacity Advocate (IMCA) must be instructed, for people lacking
capacity who have no-one else to support them (other than paid staff), whenever a decision
needs to be made about:


serious medical treatment or
accommodation in a hospital or a care home and the person will stay in hospital longer
than 28 days, or they will stay in a care home for longer than 8 weeks
There is also discretion to instruct an IMCA when carrying out a review, or in a safeguarding
adults case.
Click here for the Mental Capacity Act 2005 code of practice.
1. Basic details
Customer name:
Care first ID:
Date of birth:
Name of decision maker
Job title:
Decision to be made:
Date mental capacity assessment carried out:
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Is this form being used to record a formal best interests meeting?
Yes
No
Date of meeting:
Venue:
2. Do any of the following apply?
Enduring Power of Attorney
Only applies to property & affairs. If
there is a valid EPA and the decision
concerns property or financial affairs,
then the attorney is the decision maker.
If in doubt, ask for evidence. The
attorney must still be consulted even if
the decision does not fall within the
scope of their authority.
Lasting Power of Attorney
Specify whether for property & affairs or
personal welfare. If the decision falls
within the scope of a valid LPA, the
attorney is the decision maker. If in
doubt, seek evidence. The attorney
must still be consulted even if the
decision does not fall within their scope
of authority.
Court of Protection Deputy
Specify whether specific whether for
property & affairs or personal welfare. If
the decision falls within the scope of the
deputyship order, then the deputy is the
decision maker. If in doubt, seek
evidence. The deputy must still be
consulted even if the decision does not
fall within their scope of authority.
Advance Decision to refuse
medical treatment
If there is an valid advanced decision,
this is legally binding. If in doubt, seek
evidence. Describe any conflicts that
may exist with the decision that needs to
be made.
Independent Mental capacity
advocate (IMCA)
Refer to criteria above. If an IMCA has
been instructed, state the reason why.
Yes
No
Details of EPA:
Yes
No
Details of LPA:
Yes
No
Details:
Yes
No
Details:
Yes
No
Details:
3. Relevant circumstances
(Try to identify all the things that the person who lacks capacity would take into account if they were making
the decision or acting for themself)
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4. Views of the person who lacks capacity
(This includes past and present wishes and feelings, any beliefs or values, and any other factors the person
themselves would be likely to consider if they were making the decision or acting for themselves)
5. Consider whether the person is likely to regain capacity
(e.g. after receiving medical treatment. If so, can the decision wait?)
6. Consultation with interested others
(e.g. friends, family, carers, LPA, Deputy, IMCA, other professionals)
Name
Relationship/
Job title
Views about best interests
7. Consider less restrictive options
(Can the decision be taken in a way which avoids restricting the person’s rights and freedom of action?)
N/A
8. If the decision involves admission to a care home, will this involve deprivation of liberty?
(This only applies if the decision related to admission to a care home. Refer to ‘factors amounting to
deprivation of liberty’ tool)
Yes
No
Not applicable
Reasons:
The home has a DOL authorisation in place.
If yes, inform the safeguarding team immediately to ensure that a deprivation of liberty
safeguards (DoLS) authorisation is in place prior to admission.
9. Are there any disputes or conflicts or interest with regards to this decision? How will these
be addressed?
10. Best interests decision summary
Considering all the factors what decision has been reached?
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I confirm that this decision is the less restrictive option or intervention available, and that it
has not been biased by age, gender, sexuality, religious beliefs, appearance or condition. I
confirm that every effort has been made to communicate with the relevant person and
interested parties.
Signature of decision maker:
Date:
Please provide a copy of the completed form to everyone who has been consulted as part of
the best interest decision making process.
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