Mental Capacity Act principles

1. A person is assumed to have capacity, until proven otherwise
2. All practical steps should be taken to help them make a decision, before deeming someone to lack capacity
3. An unwise decision does not mean someone lacks capacity
4. A decision made for a person who lacks capacity, must be be made in their best interest
5. Decisions should be the least restrictive of the person’s rights and freedom of action

Assessing capacity

The patient must be given every opportunity to make a decision

• Provide relevant information, including alternatives
• Communicate in an appropriate way, that the patient is likely to understand
• Put the patient at ease, and discuss at a time when they feel most confident to do so
• Seek additional assistance from the patient’s support system, to help understand and make a choice

A two-stage test is used

• Does the person have impairment of the mind or brain, or is there some sort of disturbance affecting the way their mind or brain works?
• If so, does the impairment or disturbance mean that the person is unable to make the decision at the time it needs to be made?

Someone lacks capacity if they are unable to do any one of:

• Understand information about the decision to be made
• Retain the information
• Evaluate or weigh-up up the information, as part of the decision-making process
• Communicate their decision

Further, we should consider

• Does the person have all relevant information?
• If there are alternatives, has this information been presented?
• Would the person have a better understanding if explained or presented differently?
• Is there a time of day or place where their understanding is better?
• Can the decision be put off until the circumstances are different, and the person can make a decision? (Such as a temporary impairment)
• Can someone else help the person to make choices or express a view?

Fluctuating capacity

• Some patients may fluctuate, due to a condition that gets worse, and affects their decision making.
• Such as a psychotic illness, or temporary factors such as acute illness, severe pain, medication side-effects, distress, shock or delirium.

The rights of someone who lacks capacity

• All decisions are made in the best interest of the patient
• The liberty of a patient will only be taken in very specific situations, and will only be used if it is the least restrictive way (See 🗽Deprivation of Liberty Safeguards (DoLS))
• To have support from an advocate (someone who acts on the patient’s behalf, but does not have legal authority to make personal or financial decisions on behalf of the patient)
• To have a deputy appointed by the court to make person or financial decisions
• To receive guidance from the Court of Protection

Appointing an IMCA

Who must get an IMCA?

• 16 or over
• A decision needs to be made about a long-term change in accommodation (28 days, or more), or serious medical treatment
• The person lacks capacity
• There is no one independent of services, who is appropriate to consult (normally a family or friend)

Applying for an IMCA

• Lambeth - POhWER

https://connectlambeth.org/our-services/advocacy/imca/

📞 020 3143 9000

📧 advocacy@connectlambeth.org

• Lewisham - POhWER

https://www.pohwer.net/lewisham

📞 0300 456 2370

📧 pohwer@pohwer.net

• Southwark - VoiceAbility

https://www.voiceability.org/make-a-referral

📞 0300 303 1660

📧 helpline@voiceability.org