The history and current context of mental capacity legislation and policy

Alternative Decision Making Options

Decision-making authorities

Under the MCA it is clear where the authority for decisions should be taken from when the person themselves is unable to make a given decision. The Act includes several ways that the person can plan for the future via advance decisions and Lasting Powers of Attorney (LPA) for either/both property and affairs and health and welfare decisions. It also contains a framework for working out what might be in the person’s best interests. Where there is no applicable LPA in place, and a decision needs to be made, there are two possible options in terms of decision-making authorities. Firstly, for day-to-day decisions where the individual is not appearing to object (for example personal care, social activities, accommodation decisions and support plans) the person intending to carry out the intervention will be the most appropriate person to make the decision. For more complex decisions, for example, in relation to end-of-life care or serious medical treatment that may have significant complications or risks, or where the person is deprived of their liberty and objecting, it may be that a referral to the Court of Protection is appropriate. The court can make decisions directly, or where ongoing decisions may be needed the appointment of a deputy may be required. Staff in all groups should seek advice and support from their own managers and legal departments where more complex or serious decisions need to be made.

Next of Kin

The term Next of Kin (NoK) is commonly used and there is a presumption that such a person has certain rights and duties; this is not actually the case. Staff and professionals may seek to consult the next of kin but that person cannot consent to anything on the person’s behalf unless they have a Lasting Power of Attorney or other authority to make the decision (e.g. deputyship, EPA). Seeking NoK consent is a mistake often made in public sector settings, as it is not a legally valid consent.

Advance Decisions to Refuse Treatment

Under the MCA 2005, these types of decisions have legal status. An advance decision can only be made by a person if they are over the age of 18 and have capacity to make that decision. They relate to medical decisions, and the statement must state which treatment they are refusing and the decision can be amended at any time by the person themselves. Staff and professionals seeking to provide treatment, once the person has lost capacity to decide for themselves, will need to check whether an advance decision exists; whether it is valid (i.e. the person has not altered the decision) and whether it is applicable to the treatment being proposed. A valid and applicable Advance Decision to Refuse Treatment has the same effect as the person making the decision themselves at the time it needs to be made. The advance decision may be communicated verbally, or where it concerns life-sustaining or lifesaving treatment, in writing.

Advance Statement of Wishes

A person can stipulate what they would like to happen if certain situations arise. Such a statement may form part of their care plan or may be recorded separately. It is not legally binding, but it should be considered if a best interest’s decision has to be taken on the person’s behalf. See for instance RGB v Cwm Taf Health Board & Ors [2013] EWHC B23 (CoP)

Lasting Powers of Attorney

Before the Mental Capacity Act was introduced, there was an arrangement called an Enduring Power of Attorney (EPA). These are now less common but there are still a small number in existence. These relate to financial and property matters only. The MCA creates a system in which the person can select who they want to make decisions on their behalf and the decisions which they will have authority to make; these are called Lasting Power of Attorney (LPA). There are two types of LPA, one for property and affairs, including finances, and one for health and welfare, including medical treatment and accommodation issues. For an LPA to be valid it must be registered with the Office of the Public Guardian (OPG) before it can be used.

As Lasting Powers of Attorney only become legally usable following registration, professionals should always check that the power has been registered at the Office of the Public Guardian (OPG), either by checking that the document has the OPG stamp on each page or by requesting a check via https://www.gov.uk/find-someones-attorney-deputy-or-guardian.

Court of Protection and Court Appointed Deputies

Where a person has not made an advance decision or LPA and a complex, or series of decisions need to be made it may be necessary to apply to the Court of Protection. In these cases, the Court may make a specific judgement or, where a number of decisions may need to be made, appoint a Deputy to continue to act in the person’s best interests if they are unable to decide for themselves.

Deputies appointed by the Court of Protection are usually relatives of the individual although professional deputies can be appointed. They have a court order outlining the limits of their responsibilities including what decisions they can and cannot make. Deputies need to provide an annual report to the Office of the Public Guardian.

Independent Mental Capacity Advocates

Where the individual who lacks capacity to consent to treatment and care has no appropriate family or friends who are willing to support them, nor an LPA or Court Appointed Deputy with the relevant powers, the clinical team may need to engage and involve an Independent Mental Capacity Advocate (IMCA). The IMCA serves to meet with the individual, clinical team and other relevant people, to provide an independent and objective view of the individual’s wishes, beliefs and former decisions, in order to work with the clinical team to protect the person’s rights and agree the Best Interests for specific clinical decisions. The IMCA will never be the decision maker.