Wills & Private Client

The Principles:

The MCA is intended to modernise and codify the law concerning the rights of individuals who lack mental capacity providing protection for the vulnerable but maximising their independence.

The MCA sets out five overriding statutory principles:-

1. Everyone is assumed to possess mental capacity unless it is established that mental capacity is lacking.
2. A person is not to be regarded as unable to make a particular decision unless all practicable attempts have been made to help him to do so and have failed.
3. A person is not to be treated as incapable of making a decision merely on grounds that a particular decision is unwise.
4. Any decision made on behalf of a person lacking capacity must be made in their best interests.
5. Any decision made on behalf of a person lacking capacity must be made in such as a way as least interferes with that person’s rights and freedom.

Examples of the practical effect of the statutory principles:

1. The starting point in each case is that each individual has mental capacity until it is proven that they do not have the capacity to make that particular decision. This will require careful consideration of an individual with mental capacity in relation to different classes of decision and may require regular referral to the individual’s medical adviser for an up to date assessment.
2. In each case consideration has to be given as to how an individual’s capacity to make their own decisions can be maximised, for example altering forms of communication, times of day to visit and taking into account medical conditions such as deafness, diabetes, etc.
3. In order to ensure that interference with an individual’s freedom is minimised always consider the full range of options available and where practicable opt for the least intrusive.
4. Consider carefully how to ensure that the full range of options are given to the person affected in a fashion which they will understand – consider speaking loudly/repetitively if necessary, using simple language, perhaps putting things in writing or seeking help from a third party such as a support worker. Make sure the risks/benefits and consequences of decisions are clearly set out.
5. In order to assess the capacity of the individual a two stage test must be considered:-

(a) Does the person concerned have an impairment of the mind (temporary or permanent)(b) Does the impairment mean that the person is unable to make a particular decision in question at the moment in time.The person is unable to make a decision if they cannot understand, remember or assess information or communicate their decision.An individual’s capacity should be assessed at intervals and in particular if major decisions need to be made. In any doubt as to capacity seek a Medical Report – diarise to ensure that this is done regularly.6. In trying to establish what is in a person’s best interests have regard to:-(a) Any instruction they may have left, e.g. an advance directive or information available as to the beliefs and values.(b) Any relevant circumstances for example reviews of family members.(c) Do not discriminate, e.g. that an elderly person should by necessity live in a nursing home.(d) Is there a possibility that someone may recover their capacity and if so can the decision be deferred.