The Care Quality Commission (CQC) estimates that around 2 million people in England and Wales may lack the capacity to make certain decisions for themselves at some point because of illness, injury or disability. The Mental Capacity Act 2005 was designed to empower and protect individuals in these circumstances. However, the CQC identified serious issues with the practical implementation of the Act. This subject was subsequently reported on by a House of Lords Select Committee in 2014, adding further momentum towards the need for improvement in practice.
It is in this context that the Department of Health commissioned this guideline, which makes recommendations for best practice in assessing and supporting people aged 16 years and older with decision-making activities. It helps to ensure that people are supported to make decisions for themselves when they have the mental capacity to do so, and where they lack the mental capacity to make specific decisions, they remain at the centre of the decision-making process. The guideline supports the empowering ethos and principles introduced by the Mental Capacity Act 2005 and explained in the Mental Capacity Act Code of Practice. These are:
1. A person must be assumed to have capacity unless it is established that he lacks capacity.
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.
3. A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
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.
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.
The guideline helps health and social care practitioners to implement these principles and improve the quality of the decision-making support they provide. It applies to a range of decisions, including care, support and treatment, financial matters and day-to-day living, and aims to be proportionate, recognising that practitioners may need to provide rapid assistance in emergencies.
The guideline is based on the best available evidence from research, expert testimony, expert consensus and developments in law. It also identifies where evidence is lacking and makes recommendations for future research. The recommendations for research address the following: training and support for practitioners, interventions to support and improve decision-making capacity for treatment, advocacy and support for decision-making, mental capacity assessment tools, and the components of a mental capacity assessment.
The guideline applies to, and reinforces, the assessment, support and exercise of capacity whenever this is required by legislation, including but not confined to the Mental Capacity Act 2005, Mental Health Act 1983 and Care Act 2014. Practitioners should use the guideline to enhance the specific requirements of such legislation, codes of practice and other guidance relevant to their work. The guideline does not seek to repeat these, or be a step-by-step guide to their implementation.
Decision-making and mental capacity can be a particularly complex area for young people aged 16–18 years. A detailed overview of the legal provisions relating to the care and treatment of young people falls outside the scope of this guideline. However, the Children Act 1989 and Children and Families Act 2014 interface with the other Acts referred to above and in some circumstances provide an additional framework for the way in which young people should be involved in decision-making about their lives.
Where a young person over 16 is found to lack capacity to make a particular decision, it is important that the best interests process under the Mental Capacity Act 2005 is followed and that young people are as involved as possible in decisions made on their behalf.
In some cases, it will be possible for someone with parental responsibility to make a decision on behalf of the young person who lacks capacity. However, this will not always be appropriate. In these circumstances, the Mental Capacity Act Code of Practice should be followed to determine who should lead the best interests process.
Effective safeguarding identification and processes must always be followed, with acute awareness necessary among practitioners about the more subtle forms of abuse such as coercion. Practitioners must always refer to local safeguarding procedures.
The guideline focuses on the following key areas:
advance care planning
assessment of mental capacity to make specific decisions at a particular time
best interests decision-making for individuals who are assessed as lacking capacity to make a particular decision at a particular time.
The structure of the guideline is as follows:
Sections 1.2, 1.4 and 1.5 each begin by citing the relevant principle from the Mental Capacity Act 2005 along with an explanatory note about the practical application of the principle. This helps to ensure that the recommendations are interpreted within the framework of the Mental Capacity Act and Code of Practice.
The guideline does not cover:
decision-making activities and support for children under 16 years
the issue of deprivation of liberty and the Deprivation of Liberty Safeguards processes.