{"id":85,"date":"2014-03-05T10:32:20","date_gmt":"2014-03-05T10:32:20","guid":{"rendered":"http:\/\/sites.cardiff.ac.uk\/wccop\/?page_id=85"},"modified":"2014-03-05T14:25:52","modified_gmt":"2014-03-05T14:25:52","slug":"3-what-do-mental-capacity-and-best-interests-mean","status":"publish","type":"page","link":"http:\/\/sites.cardiff.ac.uk\/wccop\/resources\/3-what-do-mental-capacity-and-best-interests-mean\/","title":{"rendered":"3.\tWhat do ‘mental capacity’ and ‘best interests’ mean?"},"content":{"rendered":"

The MCA has five guiding principles<\/a>, which are:<\/p>\n

    \n
  1. A person must be assumed to have capacity unless it is established that he lacks capacity.<\/li>\n
  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.<\/li>\n
  3. A person is not to be treated as unable to make a decision merely because he makes an unwise decision.<\/li>\n
  4. 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.<\/li>\n
  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.<\/li>\n<\/ol>\n

    A person is said to lack \u2018mental capacity\u2019 if s\/he is unable to make a decision in relation to a particular matter \u2018because of an impairment of, or a disturbance in the functioning of, the mind or brain\u2019 (s2 MCA<\/a>).\u00a0 The abilities required \u00a0to make a particular decision are as\u00a0 follows:<\/p>\n

    a)\u00a0\u00a0\u00a0\u00a0\u00a0 to understand the information relevant to the decision,
    \nb)\u00a0\u00a0\u00a0\u00a0\u00a0 to retain that information,
    \nc)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 to use or weigh that information as part of the process of making the decision, or
    \nd)\u00a0\u00a0\u00a0\u00a0\u00a0 to communicate his decision (whether by talking, using sign language or any other means). (    s3 MCA<\/a>)<\/p><\/blockquote>\n

    If a person \u2018lacks capacity\u2019 in relation to a matter then other people can make decisions about that matter for them in their \u2018best interests\u2019.\u00a0 Section 4<\/a> of the MCA sets out the \u2018best interests checklist\u2019, which tells decision makers what they have to think about when making best interests decisions.\u00a0 They must consider the person\u2019s past and present wishes and feelings, values and beliefs.\u00a0 They must \u2013 so far as practicable and appropriate \u2013 consult with others engaged in caring for that person or interested in their welfare\u00a0. Having followed these steps and taken these matters into account, the person making the decision about best interests must employ what the Court has described as a \u2018balance sheet\u2019 approach, which means weighing the likely advantages for the person against the likely disadvantages. Only if the \u2018account\u2019 is \u2018relatively significantly in credit\u2019, will the intervention be in the person\u2019s best interests.\u00a0 The \u2018balance sheet was developed in a case called Re A (Medical Treatment: Male Sterilisation) (2000)<\/a><\/i>; a more recent example can be seen in NHS Trust v K & Ors (2012)<\/a><\/i>. \u00a0The MCA’s ‘best interests’ approach is not the same as ‘substituted judgment’ which is used in some other jurisdictions because, although it tries to look at things from the person’s point of view, their past or present wishes can be outweighed by other factors (Aintree University Hospitals NHS Foundation Trust v James<\/em>, 2013<\/a>).<\/p>\n

    The MCA also allows for restraint to prevent harm to a person who lacks capacity, provided \u00a0that the act is a proportionate response to the likelihood of them suffering harm and the severity of that harm.\u00a0 Restraint is defined as the use of force, or threat of use of force, to secure the doing of something which the relevant person resists, or if it involves restricting a person\u2019s liberty whether or not they resist (s6 MCA<\/a>).\u00a0 If it involves depriving them of their liberty, then deprivation of liberty procedures<\/a>\u00a0 will need to be used.If there is a serious dispute or it falls into a small category of \u2018special cases\u2019 then an application to the Court of Protection should be made.<\/p>\n","protected":false},"excerpt":{"rendered":"

    The MCA has five guiding principles, which are: A person must be assumed to have capacity unless it is established that he lacks capacity. 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. A person is<\/p>\n","protected":false},"author":1346,"featured_media":0,"parent":10,"menu_order":3,"comment_status":"open","ping_status":"closed","template":"","meta":{"footnotes":""},"class_list":["post-85","page","type-page","status-publish","hentry"],"meta_box":[],"_links":{"self":[{"href":"http:\/\/sites.cardiff.ac.uk\/wccop\/wp-json\/wp\/v2\/pages\/85","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/sites.cardiff.ac.uk\/wccop\/wp-json\/wp\/v2\/pages"}],"about":[{"href":"http:\/\/sites.cardiff.ac.uk\/wccop\/wp-json\/wp\/v2\/types\/page"}],"author":[{"embeddable":true,"href":"http:\/\/sites.cardiff.ac.uk\/wccop\/wp-json\/wp\/v2\/users\/1346"}],"replies":[{"embeddable":true,"href":"http:\/\/sites.cardiff.ac.uk\/wccop\/wp-json\/wp\/v2\/comments?post=85"}],"version-history":[{"count":2,"href":"http:\/\/sites.cardiff.ac.uk\/wccop\/wp-json\/wp\/v2\/pages\/85\/revisions"}],"predecessor-version":[{"id":119,"href":"http:\/\/sites.cardiff.ac.uk\/wccop\/wp-json\/wp\/v2\/pages\/85\/revisions\/119"}],"up":[{"embeddable":true,"href":"http:\/\/sites.cardiff.ac.uk\/wccop\/wp-json\/wp\/v2\/pages\/10"}],"wp:attachment":[{"href":"http:\/\/sites.cardiff.ac.uk\/wccop\/wp-json\/wp\/v2\/media?parent=85"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}