Statutory principles (section 1)(reproduced in full in appendix A):s1(5)(reproduced in full in appendix A):s1(4)(reproduced in full in appendix A):s1(3)(reproduced in full in appendix A):s1(2)(reproduced in full in appendix A):s1(1)(reproduced in full in appendix A):s1Mental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:statutory principlesMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:statutory principlesMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewPresumption of capacityMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:presumption of capacityMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewPresumption of capacityMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:presumption of capacityMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overview(reproduced in full in appendix A)Presumption of capacityMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:presumption of capacityMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:duty to help person to make own decision where possibleMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:duty to help person to make own decision where possibleMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:duty to help person to make own decision where possibleMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:duty to help person to make own decision where possibleMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:duty to help person to make own decision where possibleDeputies:who may beMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:unwise decision-makingMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewDeputies:who may beMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:unwise decision-makingMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewDeputies:who may beMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:unwise decision-makingMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewDeputies:who may beMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:unwise decision-makingMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewDeputies:who may beMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:duty to act in person’s best interestsDeputies:who may beBest interestsMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:duty to act in person’s best interestsDeputies:who may beBest interestsMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:duty to act in person’s best interestsDeputies:who may beBest interestsMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:duty to act in person’s best interestsDeputies:who may beBest interestsMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:duty to act in person’s best interestsDeputies:who may beBest interestsMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:duty to act in person’s best interestsDeputies:who may beBest interestsMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:duty to act in person’s best interestsDeputies:who may beBest interestsMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:duty to consider less restrictive optionsDeputies:who may beMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:duty to consider less restrictive optionsLeast restrictive optionDeputies:who may be
3.10The MCA 2005 starts with a number of fundamental statutory principles which apply, and must be applied, whenever a person does something under the Act.
THE STATUTORY PRINCIPLES |
Section 1(1) provides that the following principles apply for the purposes of the Act: |
1 | A person must be assumed to have capacity unless it is established that he lacks capacity (MCA 2005 s1(2)). |
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 (MCA 2005 s1(3)). |
3 | A person is not to be treated as unable to make a decision merely because he makes an unwise decision (MCA 2005 s1(4)). |
4 | An act done, or decision made, under the Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests (MCA 2005 s1(5)). |
5 | 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 (MCA 2005 s1(6)). |
3.11It is important to emphasise the importance of these principles at the outset, and useful to illustrate one or two of the situations in which they can be significant.
The presumption of capacity
3.12The first principle is that the relevant person ‘must be assumed to have capacity unless it is established that he lacks capacity’.
3.13The starting point, therefore, is
always that this person has capacity to make this particular decision for themselves. That remains the legal position until it is established that it is more likely than not that they lack this capacity.
1MCA 2005 s2(4). In proceedings under the MCA 2005 ‘or any other enactment, any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities’. The reference to proceedings under ‘any other enactment’ is likely to be relevant to certain proceedings taken under the MHA 1983.3.14A fair number of cases brought to the Court of Protection are brought because the evidence is quite finely balanced and there is a dispute about the person’s capacity. In such cases, the presumption of capacity may be decisive. In medical practice, for example in an A&E setting, it is not uncommon for a doctor when asked about a person’s capacity to say that it is ‘fifty-fifty’; evidently, the presumption of capacity has not been displaced. And, when it comes to depriving someone of their liberty under the Act, it follows that the presumption that they can make their own decision about whether to not to be in the particular hospital or care home must first be displaced.
Duty to help the person make their own decision where possible
3.15The second principle is that a person is not to be treated as unable to make the particular decision for themselves unless all practicable steps to help them to do so have been taken without success.
3.16What is practicable – that is, capable of being put into practice – depends on the circumstances at the time.
3.17If a person in need of immediate medical treatment is unconscious after a serious motorway accident it will not be practicable before intervening to take any steps to help them make their own decision about the particular medical intervention.
3.18At the other end of the scale is the situation where it is practicable to assist a person with a learning disability to make their own will. If there is no urgency, the fact that the person lacks capacity to make their own will today is not decisive if with assistance over weeks or months they can develop the necessary understanding. It may be possible to break the relevant information down into a more understandable form, to repeat key points over a number of weeks, to devise helpful visual aids and so on.
3.19Likewise, an unwell person in hospital who is asked about a return home or a move into residential care may appear to lack capacity to make the decision at this moment. However, with more time to reflect, clearer explanations, and the benefit of discussing the options with family members, trusted friends or an advocate, they may well have capacity to make their own decision.
Unwise decision-making
3.20The third principle is that ‘A person is not to be treated as unable to make a decision merely because he makes an unwise decision’.
3.21One can rephrase this by saying that a person is not to be treated as being unable to make their own decision merely because the decision they make or propose making is considered by some person or persons to be unwise.
3.22Although a person cannot be found to lack capacity merely because their proposed decision is unwise, fairly obviously an unwise or irrational decision may raise significant doubts and so trigger an assessment of their capacity.
3.23In practice this principle is often in play, particularly when it comes to decisions about whether to remove older people into residential care. There are many older people who prefer to ‘take their chances’ at home rather than live in a care home, notwithstanding the risk of falls and some physical suffering. Some of them, in common with all generations, will have a stubborn streak, ‘unreasonably’ refuse good or well-meant advice, or demonstrate a lifelong antipathy to being told what to do. The fact that others think they are being unwise is insufficient. They only lack capacity if their ability to understand, retain and weigh the information relevant to the decision, including the foreseeable benefits and risks of deciding one way or the other, is undermined in some significant way by an impairment or disturbance of their mind or brain. Otherwise, their decision is essentially no different to that of a person who goes mountaineering, hang-gliding or motor racing – risky and the doctor might not do it, arguably unwise, could end unhappily, but they are within their rights.
Duty to act in the person’s best interests
3.24The fourth principle is that, ‘An act done, or decision made, under the Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests’.
3.25This was also part of the old common law test which, it may be recalled, required a clinician, social worker or other professional carer to give the incapacitated person any treatment or care necessary to preserve their life, health or well-being ‘which was in their best interests’.
3.26The final phrase drew attention to the fact that providing treatment or care is not always in a person’s best interests. Obvious examples are where further prolonging a terminally ill patient’s life would cause them considerable suffering for little benefit, and where a patient’s fierce resistance to treatment means that it is not in their best interests to attempt to give it by restraint.
3.27If a person lacks capacity to make a decision, so that someone else must make it for them, applying the best interests requirement does not mean that other people’s interests are always irrelevant and must be given no weight. As an example, almost all parents want their children to be happy and free from worry. The Court of Protection may therefore authorise making a gift from the incapacitated person’s funds to a child in need. If the incapacitated person still had capacity to make the gift they would wish to help in this way; and it is in their best interests to do on their behalf that which they themselves would obviously do if they could. Similarly, most people with capacity consider and take into account the wishes, feelings and needs of their spouse or partner when making decisions which affect them. It is in the incapacitated person’s best interests to have regard to these historic genuine feelings and values if they can no longer hold or express them.
3.28The critical error to avoid is an analysis of the person’s best interests which disregards or downplays their wishes, feelings, values and beliefs in the perverted belief that critical objectivity is undermined by subjective considerations.
3.29The law requires objective analysis of a subject not an object. The incapacitated person is the subject. Therefore, it is
their welfare in the context of
their wishes, feelings, beliefs and values that is important. This is the principle of beneficence which asserts an obligation to help others further
their important and legitimate interests, not one’s own.
2From Westminster City Council v Sykes [2014] EWHC B9 (COP), (2014) 17 CCLR 139 at section 10.3.30Why would anyone wish a person to receive care otherwise than in accordance with their wishes if they can be cared for adequately in accordance with their wishes?
Duty to consider less restrictive options
3.31The fifth principle is that: ‘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’.
3.32This principle is sometimes paraphrased as ‘one must choose the least restrictive option’, which risks being misleading. The ‘least restrictive option’ of those available may be to do nothing and to neglect the person. That is not what the principle requires. The decision-maker must have regard to whether the necessary purpose or aim (eg treating a severe illness which is causing considerable suffering) can be as effectively achieved in a less restrictive way (eg in a way which is acceptable to the person or more acceptable to them). Why an act or decision is now needed, and the effectiveness of less restrictive approaches, must be considered.