106 Mental Capacity Act and Deprivation of Liberty Safeguards Mental Capacity Issues of mental capacity and consent are central to decisions made in the adult safeguarding process. All interventions need to consider the ability of adults to make informed choices about the way they want to live and the risks they want to take. This includes their ability to understand the implications of their situation and to act themselves to prevent abuse and to fully participate in decision-making about interventions. The Mental Capacity Act (2005) (MCA) provides a statutory basis on which to empower and protect an adult who may lack the capacity to make decisions for themselves and establishes a framework for making decisions on their behalf. This applies whether the decisions are lifechanging events or for everyday matters. All decisions taken in the adult safeguarding process must comply with the MCA. The MCA starts with the presumption that, from the age of 16, we can make our own decisions – including about our safety and when and how services intervene in our lives. It then sets out the test to determine whether an adult can make a particular decision for themselves. This states that an adult only lacks capacity in circumstances where they are unable to decide because of ‘an impairment of, or disturbance in the functioning of, the mind or brain.’ It then elaborates on what it means to decide: the adult must be able to: Understand information relevant to the decision Retain that information long enough to Use and weigh the information & come to a decision Communicate that decision Only if an adult cannot manage one (or more) of these elements do they lack capacity and someone else can make the decision on their behalf. This is known as a best interests decision. If an adult lacks the capacity to decide for themselves, anyone who makes that decision for them is known as the ‘decision maker’ and must make the decision in that adult’s best interests. This must involve: Considering the adult’s past & present wishes Consulting with all those with an interest in their welfare Considering the least restrictive way of achieving the desired outcome Balancing the pros and cons of each available option to conclude about what is in the adult’s best interests Record their rationale for making the decision Remember the MCA Five Statutory Principles 1. Assumption of capacity: “a person must be assumed to have capacity to make a decision unless it is established that he lacks capacity”. 2. Assisted decision-making: “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”. 3. Unwise decisions: “a person is not to be treated as unable to make a decision merely because he makes an unwise decision”. 4. Best interests: “an act done or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests”. 5. Less restrictive alternative: “before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action”. Section 5 of the MCA offers protection from liability for those making decisions (or undertaking care functions), as if the adult lacking capacity had consented to it. However, before acting or making a decision on behalf of the adult, there must be ‘reasonable belief’ Appendix 15 – Mental Capacity Act and Deprivation of Liberty Safeguards
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