43657 Consent Tool Kit ACT2000 Mental Capacity Act Full

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Mental Capacity Act
tool kit

Mental Capacity Act tool kit •
About this tool kit

ABOUT THIS TOOL KIT
In 2007 the Mental Capacity Act 2005 came into
force in England and Wales. It provides a legal
framework for decision-making on behalf of
people aged 16 or over who cannot make
decisions themselves. It also sets out the law for
people who wish to make preparations for a time
in the future when they may lack capacity to
make decisions.
The purpose of this tool kit is to act as a prompt
to doctors when they are providing care and
treatment for people who lack, or who may lack,
the mental capacity to make decisions on their
own behalf. In the BMA’s view, this is likely to be
the majority of doctors. The tool kit consists of a
series of cards relating to specific areas of the Act,
such as how to assess capacity, the Act’s basic
principles, advance refusals of treatment, research
and Lasting Powers of Attorney (LPAs). Although
each of the cards refers to separate areas of the
Act, there is inevitably a degree of overlap.
This tool kit is not intended to provide definitive
guidance on all the issues surrounding the Mental
Capacity Act. Card 1 lists alternative sources of
guidance that should be used in conjunction with
the cards. In cases of doubt, legal advice should be
sought. The tool kit is designed to raise doctors’
awareness of the Act, and to provide an aid for
good decision-making.

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Mental Capacity Act tool kit •
About this tool kit

This tool kit applies to England and Wales. In
Scotland, decision-making in this area is covered
by the Adults With Incapacity (Scotland) Act 2000.
In Northern Ireland, decision-making is governed
by the common law.
The tool kit is available on the BMA’s website. NHS
Trusts, medical schools and individual doctors may
download and adapt it to suit their own
requirements. There are no copyright restrictions
on this tool kit – please feel free to make multiple
copies.
The BMA would welcome feedback on the
usefulness of the tool kit. If you have any
comments please address them to:
Medical Ethics Department
British Medical Association
BMA House
Tavistock Square
London, WC1H 9JP
Tel: 020 7383 6286
Fax: 020 7383 6233
Email: ethics@bma.org.uk
Website: www.bma.org.uk

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Mental Capacity Act tool kit •
Guidance on the Mental Capacity Act

CARD 1
GUIDANCE ON THE MENTAL
CAPACITY ACT
Publications
Advance decisions and proxy decision-making in
medical treatment and research, British Medical
Association (2007)
Assessment of mental capacity, British Medical
Association and The Law Society (3rd edition due
in 2008-9)
Medical ethics today: the BMA’s handbook of
ethics and law, British Medical Association (2004)
Medical treatment for adults with incapacity:
guidance on medico-legal issues in Scotland,
British Medical Association (2002)
Mental Capacity Act 2005 Code of Practice,
Department for Constitutional Affairs (2007)
The impact of the Human Rights Act 1998 on
medical decision-making, British Medical
Association (2007)
The Mental Capacity Act – guidance for health
professionals, British Medical Association (2007)
Making decisions – a guide for people who work
in health and social care, Ministry of Justice and
Office of the Public Guardian (2007)

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Mental Capacity Act tool kit •
General information

CARD 2
GENERAL INFORMATION

1

The Mental Capacity Act 2005
The Mental Capacity Act 2005 provides a
comprehensive framework for decisionmaking on behalf of adults aged 16 and over
who lack capacity to make decisions on their
own behalf. The Act applies to England and
Wales. Scotland has its own legislation, the
Adults With Incapacity (Scotland) Act 2000.
The approach in Northern Ireland is currently
governed by the common law.
The Act applies to all decisions taken on
behalf of people who permanently or
temporarily lack capacity to make such
decisions themselves, including decisions
relating to medical treatment. All doctors
working with adults who lack, or who may
lack, capacity will need to be familiar with
both its underlying principles and its basic
provisions. This tool kit sets out the main
features of the Act in so far as it relates to
decisions about medical treatment.
The Act is accompanied by a statutory Code of
Practice providing guidance on how it should
be used. Certain people have a legal duty to
have regard to the guidance in the Code of
Practice, including anyone acting in a
professional capacity or being paid for their
work with people who may lack capacity. It is
therefore essential that health professionals
are familiar with the Code of Practice.
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Mental Capacity Act tool kit •
General information

2

What is capacity?
Decision-making capacity refers to the
everyday ability that individuals possess to
make decisions or to take actions that
influence their life, from simple decisions
about what to have for breakfast, to farreaching decisions about serious medical
treatment. In a legal context it refers to a
person’s ability to do something, including
making a decision, which may have legal
consequences for the person themselves or for
other people.

3

When does a person lack capacity?
For the purpose of the Act a person lacks
capacity if, at the time the decision needs
to be made, he or she is unable to make or
communicate the decision because of an
‘impairment of, or a disturbance in the
functioning of, the mind or brain’. The Act
contains a two-stage test of capacity:
• is there an impairment of, or disturbance
in the functioning of, the person’s mind
or brain? If so;
• is the impairment or disturbance sufficient
that the person is unable to make that
particular decision?
The assessment of capacity is ‘task-specific’. It
focuses on the specific decision that needs to
be made at the specific time the decision is
required. It does not matter if the incapacity is
temporary, or the person retains the capacity
to make other decisions, or if the person’s
capacity fluctuates. The inability to make a
decision, however, must be a result of the
impairment or disturbance already mentioned.

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Mental Capacity Act tool kit •
General information

This could be the result of a variety of factors,
including mental illness, learning disability,
dementia, brain damage, or intoxication.
The important point is that the impairment
or disturbance renders the individual unable
to make the decision in question.
If the impairment is temporary and the
decision can realistically be put off until such
a time as he or she is likely to regain capacity,
then it should be deferred. While it is clear
that an unconscious patient will lack capacity,
most other categories of patient will retain
some decision-making capacity, however
slight.

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Mental Capacity Act tool kit •
Basic principles

CARD 3
BASIC PRINCIPLES

1

What are the Act’s basic principles?
The Act sets out a number of basic principles
that must govern all decisions made and
actions taken under its powers. These are
rooted in best practice and the common law
and are designed to be fully compliant with
the relevant sections of the Human Rights Act.
Where confusion arises about how aspects of
the Act should be implemented, it can be
extremely helpful to refer back to them.
Actions or decisions that clearly conflict with
them are unlikely to be lawful, although there
may be occasions on which they are in tension
with each other, and some balancing will be
required. A list of the principles, with brief
descriptions, is given below. Further
information about best interests comes later
in the tool kit.

2

A presumption of capacity
It is a fundamental principle of English law
that adults have the right to make decisions
on their own behalf and are assumed to have
the capacity to do so, unless it is proven
otherwise. The responsibility for proving that
an adult lacks capacity falls upon the person
who challenges it.

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Basic principles

3

Maximising decision-making capacity
Closely linked to the presumption of capacity,
this states that everything practicable must be
done to support individuals to make their own
decisions, before it is decided that they lack
capacity. For example, advocates and
communication support might be necessary,
and consideration should be given to whether
an individual’s capacity is affected by the time
of day or medication regimes. The aim is to
ensure that individuals who are capable of
making decisions for themselves, but may
need some support, are not inappropriately
assessed as incapacitated.

4

The freedom to make unwise decisions
The fact that an individual makes a rash,
unwise or irrational decision, or begins to act
out of character, is not itself proof of
incapacity. All adults retain the right to make
decisions which to others might seem unwise
or irrational. Although such actions may raise
questions about capacity – where for example
they follow a period of illness or an accident –
they are in no way determinative. What
matters is the ability to make the decision, not
the outcome.

5

Best interests
At the heart of the Act lies the principle that
where it is determined that individuals lack
capacity, any decision or action taken on their
behalf must be in their best interests.
Practically speaking, what constitutes an
individual’s best interests will depend upon
the circumstances of each individual case.

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Basic principles

6

The less restrictive alternative
Whenever a person is making a decision on
behalf of an adult who lacks capacity, he or
she must consider if it is possible to make the
decision in a way that is less restrictive of that
individual’s fundamental rights or freedoms.
There are often several ways to achieve a
desired outcome, and where possible the
choice must be the one that interferes least
with the individual’s freedoms while still
achieving the necessary goal. The option
chosen must, however, be in the person’s best
interests, which may not in fact be the least
restrictive.

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Mental Capacity Act tool kit •
Assessing capacity

CARD 4
ASSESSING CAPACITY

1

Who should assess capacity?
The individual who wishes to make a decision
on behalf of an incapacitated person is
responsible for assessing his or her capacity.
Where consent to medical treatment is
required, the health professional proposing
the treatment needs to decide whether the
patient has the capacity to consent. The
reasons why capacity is in doubt should be
recorded in the medical record, as should
details of the assessment process and its
findings. The more serious the decision, the
more formal the assessment of capacity is
likely to be, and, where appropriate, it might
be advisable to refer to a psychiatrist or
psychologist for a second opinion.

2

How do you assess capacity?
The Act makes use of a ‘functional’ test of
capacity, adapted from the common law,
which focuses on the decision-making process
itself. First it must be established that the
person being assessed has ‘an impairment of,
or a disturbance in the functioning of, the
mind or brain’ which may affect their ability
to make the decision in question. Under the
Act, a person is regarded as being unable to
make a decision if, at the time the decision
needs to be made, he or she is unable:
• to understand the information relevant to
the decision

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Assessing capacity

• to retain the information relevant to the
decision
• to use or weigh the information; or
• to communicate the decision (by any means).
Where an individual fails one or more parts of
this test, then they do not have the relevant
capacity and the entire test is failed.
In assessing capacity, consideration should be
given, where appropriate, to the views of
those close to the individual. Family members
and close friends may be able to provide
valuable background information, although
their views about what they might want for
the individual must not be allowed to
influence the assessment. An assessment that
a person lacks the capacity to make a decision
must not be discriminatory. It must not be
based simply on a person’s:
• age
• appearance
• assumptions about their condition
• any aspect of their behaviour.
3

Uncertainties about capacity
Difficult judgements will still need to be
made, particularly where there is fluctuating
capacity or where some capacity is
demonstrable but its extent is uncertain. This
four-stage test is nevertheless well-established,
and more detailed advice on practical
procedures for assessing capacity is available
from other sources. The Act requires that any
decision that a person lacks capacity must be
based on a ‘reasonable belief’ backed by
objective reasons.

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Assessing capacity

Where there are disputes about whether a
person lacks capacity that cannot be resolved
using more informal methods, the Court of
Protection can be asked for a judgement.
4

What do you do when an individual
refuses to be assessed?
Occasionally an individual whose capacity is in
doubt may refuse to be assessed. In most
cases, a sensitive explanation of the potential
consequences of such a refusal, such as the
possibility that any decision they may make
will be challenged at a later date, will be
sufficient for them to agree. However, if the
individual flatly refuses, in most cases no one
can be required to undergo an assessment.

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Best interests

CARD 5
BEST INTERESTS

1

What does the Act mean by best
interests?
All decisions taken on behalf of someone who
lacks capacity must be taken in his or her best
interests. This is a statutory restatement of the
previous common law position. The Act
provides a checklist of common factors that
must be taken into account when making a
best interests judgement. A best interests
judgement is not an attempt to determine
what the person would have wanted,
although this must be taken into account. It is
as objective a test as possible of what would
be in the person’s actual best interests, taking
into consideration all relevant factors.

2

What should you take into account when
assessing best interests?
Lacking capacity to make a decision should
not exclude an individual from participating
in the decision-making process as far as is
possible. The decision-maker must also take
into account the likelihood that the person
will regain capacity. A decision should be
delayed if it can reasonably be left until he
or she regains the capacity to make it. Other
relevant factors are likely to include:
• the person’s past and present wishes and
feelings, including any relevant written
statement made when she or he had
capacity – this would include general
statements of wishes
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Best interests

• his or her beliefs or values where they
would have an impact on the decision
• other factors the person would have
considered if able to do so – such as the
effect of the decision on other people.
A crucial part of any best interests judgement
will involve a discussion with those close to
the individual, including family, friends or
carers, where it is practical or appropriate to
do so, bearing in mind the duty of
confidentiality. (For more information on
information sharing, see card 16.) It should
also include anyone previously nominated by
the person as someone to be consulted,
anyone appointed to act under a Lasting
Power of Attorney or any deputy appointed
to make decisions by the Court of Protection.
Further information about the last two is
given later in the tool kit (see cards 11 and 12).
3

Are there any exceptions to the best
interests principle?
There are two circumstances when the best
interests principle will not apply. The first is
where someone has previously made an
advance decision to refuse medical treatment
while they had capacity. Where the advance
decision is valid and applicable, it should be
respected, even if others think that the
decision is not in his or her best interests.
(For more information on advance decisions,
see card 9.)
The second exception relates to the enrolment
of incapacitated adults in certain forms of
research. This is covered in more detail in
card 10.
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Mental Capacity Act tool kit •
Acts in connection with care or treatment

CARD 6
ACTS IN CONNECTION WITH
CARE OR TREATMENT
1

What powers does the Act give to health
professionals?
An action or intervention will be lawful – ie
health professionals will enjoy protection from
liability – where the decision-maker has a
reasonable belief that the individual lacks
capacity to consent to what is proposed, and
that the action or decision is in his or her best
interests. (See card 5 on how to assess
someone’s best interests.) It applies to anyone
making a decision on behalf of another,
irrespective of whether they have a
professional relationship with the
incapacitated individual. It could include, for
example, taking an incapacitated stranger by
the arm to assist them to cross a road. In
relation to medical treatment, it is applicable
not only to an episode of treatment itself, but
also to those necessary ancillary procedures
such as conveying a person to hospital.

2

How far do these powers extend?
There are limits to these powers. A valid
advance decision, and a valid decision by an
attorney or a court-appointed deputy would
take precedence. The Act also sets limits to the
extent to which the freedom of movement of
an incapacitated person can be restricted. An
incapacitated person can only be restrained
where there is a reasonable belief that it is
necessary to prevent harm to the

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Acts in connection with care or treatment

incapacitated person. Any restraint must be
proportionate to the risk, and of the minimum
level necessary to protect the incapacitated
person. (For more information about restraint,
see card 7.)
The onus is on the person wishing to act to
justify as objectively as possible his or her
belief that the person being cared for is likely
to be harmed unless some sort of physical
intervention or other restraining action is
taken. Although reasonable use of restraint
may be lawful, the Act makes it clear that it
will never be lawful to deprive a person of his
or her liberty within the meaning of Article
5(1) of the European Convention on Human
Rights. (See cards 7 and 8 for more
information on deprivation of liberty.)
3

When is court approval required?
Before the Act came into force, the courts had
decided that some decisions were so serious
that each case should be taken to court so
that a declaration of lawfulness could be
made. The Act’s Code of Practice advises that
the following cases should continue to go
before the court:
• proposals to withdraw or withhold artificial
nutrition and hydration from patients in a
persistent vegetative state
• cases involving organ or bone marrow
donation by a person lacking the capacity
to consent
• proposals for non-therapeutic sterilisation
• some termination of pregnancy cases

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Acts in connection with care or treatment

• cases where there is a doubt or dispute that
cannot be resolved locally about whether a
particular treatment will be in a person’s
best interests
• cases involving ethical dilemmas in
untested areas.

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Mental Capacity Act tool kit •
Restraint

CARD 7
RESTRAINT

1

What is restraint?
There may be occasions when health
professionals need to consider the use of
restraint in treating an individual lacking
capacity. The Act states that restraint is the
use or threat of force, to make someone do
something they are resisting, or restricting a
person’s freedom of movement, whether they
are resisting or not. The Act only refers to
restraint to prevent harm to the patient.
Health professionals have a common law right
to use restraint to prevent harm to others.

2

Types of restraint
Restraint can be overt, such as the use of
bedrails. It can also be covert and indirect such
as doors that are heavy and difficult to open
or putting patients in low chairs from which
they find it difficult to move. Restraint
may be:
• physical – held by one or more persons
• mechanical – the use of equipment such as
bedrails, mittens to stop patients removing
nasogastric tubes or catheters
• chemical – involving medication, for
example sedation
• psychological – telling patients that they
are not allowed to do something, or taking
away aids necessary for them to do what
they want, for example spectacles or
walking aids.

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Restraint

3

When is restraint lawful?
Restrictive measures should be a last resort
and alternatives to restraint must always be
considered. Anybody proposing to use
restraint must have objective reasons to justify
that it is necessary. They must also be able to
show that the patient is likely to suffer harm
unless proportionate restraint is used. A
proportionate response means using the least
intrusive type and the minimum amount of
restraint to achieve the objective, in the best
interests of the patient lacking capacity. If
these conditions are met, it is permissible to
restrain a patient to provide necessary
treatment. It also follows that in such
circumstances there would be no liability for
assault. The restraint must not amount to a
deprivation of liberty and if it is considered
necessary to go so far as to deprive someone
of their liberty in order to safeguard their
interests, special safeguards must be
employed. (For further information on
deprivation of liberty, see card 8.)

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Deprivation of liberty

CARD 8
CARE AND TREATMENT AMOUNTING
TO DEPRIVATION OF LIBERTY – THE
‘BOURNEWOOD’ SAFEGUARDS
1

Deprivation of liberty
The basic principles of the Mental Capacity Act
make it clear that people who lack the ability
to consent to treatment should be cared for in
the least restrictive manner possible. There will
be circumstances however in which appropriate
care or treatment that is in an individual’s best
interests can only be provided in circumstances
that will amount to a ‘deprivation of liberty’.
Following an amendment, the Mental Capacity
Act now provides a set of safeguards that must
be in place where an individual is deprived of
liberty. These new safeguards come into effect
in April 2009.
The concept of ‘deprivation of liberty’ is not
straightforward and where doctors identify
individuals who may be being deprived of
liberty and who are not subject to mental
health legislation, appropriate advice should
be sought.
This card gives a brief outline of relevant
factors to take into account when assessing
whether an individual is or might be deprived
of liberty. It looks at means of avoiding
depriving people of liberty and at safeguards
that must be in place when it cannot be
avoided.

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Deprivation of liberty

2

What is deprivation of liberty?
The courts have identified that the following
factors are likely to result in deprivation of
liberty:
• restraint is used, including sedation, to
admit a person who is resisting
• professionals exercise complete and
effective control over care and movement
for a significant period
• professionals exercise control over
assessments, treatment, contacts and
residence
• the person would be prevented from
leaving if they made a meaningful attempt
to do so
• a request by carers for the person to be
discharged to their care is likely to be
refused
• the person is unable to maintain social
contacts because of the restrictions placed
on access to other people
• the person loses autonomy because they are
under continuous supervision and control.

3

How can deprivation of liberty be avoided?
All individuals should be treated in ways that
restrict fundamental freedoms as little as
possible. Where a decision is made on behalf
of an individual who lacks capacity, the
decision must be the least restrictive of the
available options, as long as that is in the
person’s best interests. Wherever possible,
deprivation of liberty should be avoided.
Active measures should be taken to avoid
unnecessary restrictions, and decision-making
should involve, as fully as possible, both the
individuals and those who are close to them.

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Deprivation of liberty

Good practice in this area will include the
following:
• decisions should be taken and reviewed in
a structured way and the reasons behind
them recorded
• effective documented care planning, (which
could include, where appropriate, the Care
Programme approach, Single Assessment
Process, Person Centred Planning or Unified
Assessment), should be in place. This should
include appropriate and documented
involvement of the individual, their family,
friends, carers or other people interested in
their welfare
• proper documented assessment of whether
the patient lacks the capacity to decide
whether to consent to the care being
proposed
• alternatives to admission to hospital or
residential care should be carefully
considered and any restrictions placed on
liberty in care homes or hospitals should be
kept to the minimum necessary
• appropriate information, presented in ways
that are sensitive to individual needs, should
be offered to patients and those involved in
their care
• where appropriate, local advocacy services
should be enrolled to provide support to
patients and their families, friends and
carers
• care should be taken to ensure as far as
possible that the patient remains in contact
with those close to him or her
• the assessment of the patient’s capacity, and
his or her care plan, should be kept under
review.

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Deprivation of liberty

4

How do you authorise deprivation of
liberty?
Until the safeguards introduced in 2009,
deprivation of liberty may be authorised
either by using detention under the Mental
Health Act (MHA), or if the grounds for MHA
detention are not met, by applying to the
Court of Protection.
After April 2009, when an individual lacking
capacity is identified as being at risk of
deprivation of liberty in a hospital or care
home setting, the ‘managing authority’ of the
hospital or care home has to make an
application to a ‘supervisory’ body to request
an authorisation of the deprivation. In the
case of an NHS hospital, the managing
authority will be the NHS body responsible for
its running. In the case of a private hospital or
care home, the managing authority will be
the person registered, or required to be
registered, under Part 2 of the Care Standards
Act 2000. In England the supervisory body is
the Primary Care Trust, if the patient is in
hospital, or the local authority, if the patient is
in a care home. In Wales it is either the
National Assembly for Wales or a Local Health
Board, or the relevant local authority for a
patient in a care home. The application should
be made in advance, except in urgent
situations when the care home or hospital can
issue an emergency authorisation, ensuring
that the decision is documented. A standard
authorisation must then be sought within
seven days.

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Advance decisions refusing treatment

CARD 9
ADVANCE DECISIONS REFUSING
TREATMENT
1

What is an advance decision?
The Act makes it clear that somebody who is
aged 18 or over and has the necessary mental
capacity can refuse specified medical
treatment for a time in the future when he or
she may lose the capacity to make the
decision. This is known as an advance decision.
The Act’s powers are restricted explicitly to
advance decisions to refuse treatment. An
advance refusal of treatment is binding if:
• the person making the decision was 18 or
older when it was made, and had the
necessary mental capacity
• it specifies, in lay terms if necessary, the
specific treatment to be refused and the
particular circumstances in which the refusal
is to apply
• the person making the decision has not
withdrawn the decision at a time when he
or she had the capacity to do so
• the person making the decision has not
appointed, after the decision was made, an
attorney to make the specified decision
• the person making the decision has not
done anything clearly inconsistent with the
decision remaining a fixed decision.

2

Can advance decisions extend to refusing
life-sustaining treatment?
Although advance decisions can be oral or in
writing, an advance refusal will only apply to

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Advance decisions refusing treatment

life-sustaining treatment where it is in writing,
is signed and witnessed, and contains a
statement that it is to apply even where life is
at risk. Advance decisions cannot be used to
refuse basic care, which includes warmth,
shelter and hygiene measures to maintain
body cleanliness. This also includes the offer
of oral food and water, but not artificial
nutrition and hydration.
In an emergency or where there is doubt
about the existence or validity of an advance
decision, doctors can provide treatment that
is immediately necessary to stabilize or to
prevent a deterioration in the patient until
the existence, and the validity and
applicability, of the advance decision can be
established.
3

Do advance decisions apply to individuals
subject to compulsory mental health
legislation?
Where a patient is subject to compulsory
treatment under mental health legislation,
an advance refusal relating to treatment
provided for the mental disorder for which
compulsory powers have been invoked will
not be binding, save in the case of electroconvulsive treatment (ECT) although the
treating professional should take such a
decision into account. This could include, for
example, considering whether there are any
other treatment options available that are less
restrictive. An agreed advance treatment plan
for mental health conditions can be helpful
and would represent a kind of advance
statement, although it would not be binding
during periods of compulsion.
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Research

CARD 10
RESEARCH

1

Can patients who lack capacity
participate in research?
It is lawful under the Act to involve adults
who lack capacity in research (other than
clinical trials into pharmaceutical products
which is regulated by the Medicines for
Human Use (Clinical Trials) Regulations 2004)
provided it is related to the condition that
contributes to the impairment of the mind or
brain from which they are suffering. The
research must be approved by a Research
Ethics Committee (REC) and it must not be
possible to conduct the research involving
individuals who retain the capacity to consent.
Where the research is ‘therapeutic’ and is
expected to benefit the individual directly, the
risks must not be excessive in relation to the
anticipated benefits. Where the research is
not expected to deliver direct benefit to the
patients but is intended to investigate the
condition from which they suffer, the risk to
individuals must be negligible, and any
intrusion kept to a minimum.

2

What are the safeguards for the
individual who lacks capacity?
Before an incapacitated individual can be
enrolled in research the researcher must
identify someone close to them who is willing
to be consulted about the appropriateness of

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Research

their involvement. In the absence of such a
person, the researcher must nominate
somebody who is independent of the
research. RECs will provide guidance on this
process.
There are additional safeguards once the
research has started. Where the incapacitated
individuals show signs of distress or resistance
or indicate by any means the wish not to
continue in the research, then they must be
withdrawn. There are also Regulations under
the Act which provide for the management
and protection of an adult patient enrolled in
a research project who loses capacity after the
research has commenced.
3

Can research take place in an emergency
situation where the patient lacks
capacity?
In December 2006, an amendment to the UK’s
Medicines for Human Use (Clinical Trials)
Regulations 2004 came into force. This allows
unconscious patients to be enrolled in clinical
trials of pharmaceutical products without prior
consent in emergency situations provided the
research has REC approval.

British Medical Association 27

Mental Capacity Act tool kit •
Lasting powers of attorney

CARD 11
LASTING POWERS OF ATTORNEY

The Mental Capacity Act replaces the Enduring
Power of Attorney (EPA) with a new form of
power of attorney, a Lasting Power of Attorney
(LPA). An LPA allows the individual (the donor) to
give authority to someone else (the attorney) to
make decisions on the donor’s behalf. The donor
decides who the attorney should be and how
wide-ranging the power should be. More than
one attorney can be appointed and they may be
appointed to make some decisions jointly (ie
together) and some decisions jointly and severally
(ie independently). If the LPA does not specify this
then the attorneys must act jointly.
There are two types of LPA, the property and
affairs LPA and the personal welfare LPA. The
personal welfare LPA covers personal, welfare and
health care decisions, including decisions relating
to medical treatment. Although an LPA in relation
to property and affairs can be used by the
attorney even when the donor still has capacity,
an LPA dealing with personal welfare can only
operate if the individual lacks capacity in relation
to the issue in question.
1

Requirements of an LPA
The Act allows an individual aged 18 or over
who has capacity to appoint an attorney
under a personal welfare LPA, to make
decisions on their behalf once they lose
capacity. In order for it to be valid a specific

28 British Medical Association

Mental Capacity Act tool kit •
Lasting powers of attorney

form must be used for an LPA. This must be in
writing and include:
• information about the nature and extent of
the LPA
• a statement signed by the donor stating
that they have read and understood the
information and that they want the LPA to
apply when they lose capacity
• the names of anyone (other than the
attorney(s)) who should be told about an
application to register the LPA
• a statement signed by the attorney(s)
stating that they have read the information
and understand the duties, in particular the
duty to act in the donor’s best interests
• a certificate completed by a third party,
confirming that, in their opinion, the donor
understands the nature and purpose of the
LPA and that no fraud or pressure has been
used to create the LPA. Registered health
care professionals can be certificate
providers and, GPs in particular, may find
they are asked by patients to fulfil this role.
2

Registration of an LPA
An LPA must be registered with the Office of
the Public Guardian (OPG) before it can be
used. It does not give the attorney any legal
power to make decisions before it is
registered. The OPG will maintain a register of
LPAs and, where there is doubt as to the
existence of an LPA, a health professional can
apply to search the register. A fee is payable
for this service.

British Medical Association 29

Mental Capacity Act tool kit •
Lasting powers of attorney

3

Powers of an LPA
The powers granted to an attorney will
depend entirely on the wording of the LPA. If
a personal welfare LPA has been registered,
the attorney will have no authority to make
decisions about the donor’s finances or
property. On the other hand, if a property and
affairs LPA has been registered, the attorney
will have no power to make any decisions
about the medical treatment of the donor.
The donor may also have included specific
restrictions on the attorney’s powers. It is
therefore important that health care
professionals carefully check the wording of
the LPA. Even where a general welfare LPA
has been created and no restrictions have
been imposed by the donor, an attorney
cannot:
• make treatment decisions if the donor has
capacity
• consent to a specific treatment if the donor
has made a valid and applicable advance
decision to refuse that treatment after the
creation of the LPA
• consent to, or refuse, life-sustaining
treatment unless this is expressly authorised
by the LPA
• consent to, or refuse, treatment for a
mental disorder where a patient is detained
under mental health legislation
• demand specific treatment that health
professionals consider is not necessary or
appropriate for the donor’s particular
condition.

30 British Medical Association

Mental Capacity Act tool kit •
Lasting powers of attorney

Where an attorney is acting under a personal
welfare LPA and they are making decisions in
relation to medical treatment, they must act
in the donor’s best interests. If there is any
doubt about this and it cannot be resolved
locally an application can be made to the
Court of Protection (see also card 12).
4

LPA versus EPA
The fundamental difference is that EPAs cover
decisions relating to property and financial
affairs only, whereas there are two types of
LPA, one to deal with financial affairs and one
to deal with personal welfare and medical
treatment decisions. An EPA cannot be
created after 30 September 2007. However,
EPAs created before that date can be
registered and used after 1 October 2007.
EPAs that are already registered will remain
legally effective. LPAs will eventually replace
the existing system of EPA, but this will
inevitably take some years during which time
the two systems will co-exist.

British Medical Association 31

Mental Capacity Act tool kit •
Court of Protection and court-appointed deputies

CARD 12
COURT OF PROTECTION AND
COURT-APPOINTED DEPUTIES
1

Court of Protection
The Act has established a new Court of
Protection to oversee the proper functioning
of the legislation. The Court has the power to
rule on the validity of LPAs as well as to
determine their meaning or effect. It also has
the power to rule on cases where there is
doubt or dispute as to whether a particular
treatment is in the best interests of an
incapacitated individual, and to make a
declaration as to whether an individual has or
lacks capacity to make decisions. As was the
position before the introduction of the Act
the approval of the Court will still be required
for the following:
• decisions about the proposed withholding
or withdrawal of artificial nutrition and
hydration from patients in a persistent
vegetative state
• cases involving organ or bone marrow
donation by a person who lacks capacity
• cases involving proposed non-therapeutic
sterilisation of a person who lacks capacity
• cases involving ethical dilemmas in untested
areas
• some termination of pregnancy cases
• cases where there is a doubt or dispute that
cannot be resolved locally about whether a
particular treatment will be in a person’s
best interests.

32 British Medical Association

Mental Capacity Act tool kit •
Court of Protection and court-appointed deputies

The Court of Protection has the same
authority as the High Court and appeals can
be made against its decisions, with permission,
to the Court of Appeal.
2

Court-appointed deputies
The new Court of Protection is able to appoint
deputies as substitute decision-makers where
a person loses capacity and has not appointed
an attorney under an LPA. Deputies replace
and extend the previous role of a receiver.
Receivers who were appointed before the
Act came into force on 1 October 2007
automatically become deputies from
that date.
Deputies can be appointed to make decisions
on health and welfare as well as financial
matters. They are likely to be appointed
where an ongoing series of decisions is
needed to resolve an issue, rather than a
single decision of the court. In the majority
of cases, the deputy is likely to be a family
member or someone who knows the patient
well. However, the Court may sometimes
appoint a deputy who is independent of the
family, if, for example, there is a history of
serious family dispute or the individual’s
health and care needs are very complex.
As with attorneys appointed under an LPA,
deputies have to make decisions in the
individual’s best interests and must allow the
individual to make any decisions for which
they have capacity. Deputies cannot refuse
or consent to life-sustaining treatment.

British Medical Association 33

Mental Capacity Act tool kit •
Court of Protection and court-appointed deputies

Deputies should inform the health
professional with whom they are dealing that
the Court has appointed them as a deputy.
Deputies will have been provided with official
documentation in relation to their
appointment. Health professionals should
review the documentation in order to confirm
the extent and scope of the authority given
by the Court.

34 British Medical Association

Mental Capacity Act tool kit •
Independent Mental Capacity Advocates

CARD 13
INDEPENDENT MENTAL
CAPACITY ADVOCATES
1

What is an Independent Mental Capacity
Advocate (IMCA)?
IMCAs support and represent particularly
vulnerable adults who lack capacity to make
certain decisions where there are no family
members or friends available or willing to be
consulted about those decisions. An IMCA is
independent of the health care professional
making the decision and represents the
patient in discussions about whether the
proposed decision is in the patient’s best
interests. An IMCA can also raise questions or
challenge decisions which appear not to be in
the patient’s best interests.

2

When should an IMCA be instructed?
An IMCA must be instructed in relation to
individuals who lack capacity and who have
no family or friends whom it is appropriate to
consult when:
• an NHS body is proposing to provide,
withhold or stop ‘serious medical
treatment’; or
• an NHS body or local authority is proposing
to arrange accommodation (or a change in
accommodation) in a hospital or care home,
and the stay in hospital will be more than
28 days, or the stay in the care home more
than eight weeks.

British Medical Association 35

Mental Capacity Act tool kit •
Independent Mental Capacity Advocates

Whilst it is not compulsory, IMCAs may also be
instructed in a care review of arrangements
for accommodation or an adult protection
case involving a vulnerable individual,
whether or not family members are involved.
An IMCA cannot be instructed if an individual
has previously named a person who should be
consulted about decisions that affect them,
and that person is willing to assist, or they
have appointed an attorney under a personal
welfare LPA or the Court of Protection has
appointed a welfare deputy to act on the
patient’s behalf. There is also no duty to
instruct an IMCA where there is a need to
make an urgent decision, for example, to save
a patient’s life. If a patient requires treatment
whilst a report is awaited from an IMCA, this
can be provided in the patient’s best interests.
It is also not necessary to instruct an IMCA for
patients detained under mental health
legislation.
Responsibility for instructing an IMCA lies with
the NHS body or local authority providing the
treatment or accommodation.
3

What is ‘serious medical treatment’?
Serious medical treatment is defined as
treatment which involves providing,
withdrawing, or withholding treatment where:
• in the case of a single treatment being
proposed, there is a fine balance between
its benefits to the patient and the burdens
and risks it is likely to entail
• in the case where there is a choice of
treatments, a decision as to which one to
use is finely balanced; or
36 British Medical Association

Mental Capacity Act tool kit •
Independent Mental Capacity Advocates

• what is proposed would be likely to involve
serious consequences for the patient.
Examples of serious medical treatment might
include chemotherapy and surgery for cancer,
therapeutic sterilisation, major surgery,
withholding or stopping artificial nutrition
and hydration and termination of pregnancy.
Where it is proposed to withdraw or withhold
artificial nutrition and hydration from a
patient in a persistent vegetative state, an
application must be made to the Court of
Protection (see card 12).
4

What are the powers of an IMCA?
In order to provide necessary support to the
incapacitated individual an IMCA will have
powers to:
• examine health records which are relevant
and necessary to deal with the issue
• consult other persons who may be in a
position to comment on the incapacitated
individual’s wishes, feelings and beliefs
• ascertain what alternative courses, actions
and options may be available to the
incapacitated individual
• obtain an alternative medical opinion.
An IMCA is required to write a report to the
NHS body or local authority responsible for
the individual’s treatment or care. The IMCA’s
report must be taken into account before the
final decision is made.

British Medical Association 37

Mental Capacity Act tool kit •
Relationship with the Mental Health Act

CARD 14
RELATIONSHIP WITH THE
MENTAL HEALTH ACT
The relationship between the Mental Capacity
Act (MCA) and the Mental Health Act (MHA)
is a key issue for health professionals.
1

When is the MHA applicable?
The code of practice to the MCA states that
before the MHA is used, consideration should
be given to using the MCA instead. It also
makes it clear that an individual does not lack
capacity simply because they are subject to the
MHA. However, health professionals should
consider using the MHA to detain and treat
an individual without capacity where:
• it is not possible to provide care or
treatment without depriving the individual
of his liberty
• the treatment cannot be given under the
MCA, eg because of a valid advance
decision
• restraint in a way that is not permitted by
the MCA is required
• assessment or treatment cannot be
undertaken safely and effectively other
than on a compulsory basis
• the individual lacks capacity in respect of
some parts of the treatment but has
capacity in respect of other parts and
refuses a key element
• there is another reason why the individual
may not receive treatment and as a result
the individual or someone else may suffer
harm.
38 British Medical Association

Mental Capacity Act tool kit •
Relationship with the Mental Health Act

2

The MCA/MHA interface
As stated previously, except in the case of ECT,
advance decisions relating to compulsory
treatment under the MHA will not be binding.
On the other hand, a valid and applicable
advance decision for treatment for conditions
that are not covered by the compulsory
powers of the MHA will be lawful. Similarly,
where an incapacitated adult is subject to
compulsory powers, all other decisions relating
to the general care and treatment of the
individual will be covered by the MCA.
There may be circumstances in which either
legal framework may apply and the question
as to which Act applies will be for the
judgement of the health professional.
However, as a rule of thumb if the patient
retains capacity the MCA cannot be used. If
the treatment is for a physical condition, then
the MHA is irrelevant. If the treatment is for
a mental disorder and the patient retains
capacity, the MCA cannot be used. Where
detention is deemed necessary, the MHA must
be used provided the relevant grounds are
met. Where the treatment amounts to a
deprivation of liberty and the MHA cannot be
used then the ‘Bournewood’ safeguards
introduced in April 2009 should be considered
(see also card 8).

British Medical Association 39

Mental Capacity Act tool kit •
Dispute resolution

CARD 15
DISPUTE RESOLUTION

There may be occasions in relation to the care
and treatment of a person who may be
incapacitated where disagreements arise.
These may relate to:
• whether an individual retains the capacity
to make a decision
• whether a proposed decision or
intervention is in an incapacitated person’s
best interests
• whether the decision or the intervention is
the most suitable of the available options.
It is clearly in everybody’s interests that
disagreements are resolved as soon as
possible, and with as much consensus as
possible. Broadly speaking, disputes can be
resolved either informally or formally. Some
disputes will be so serious that they may have
to be referred to the Court of Protection. This
card sets out briefly the different options
available for resolving disputes in relation to
incapacitated adults.
1

Good communication
Many disputes can either be avoided, or
settled rapidly, by using good communication
and involving all relevant individuals. Where
health professionals are involved in a dispute
with those close to an incapacitated person it
is a good idea to:
• set out the different options in a way that

40 British Medical Association

Mental Capacity Act tool kit •
Dispute resolution

can be clearly understood
• invite a colleague to talk the matter over
and offer a second opinion
• consider enrolling the services of an
advocate
• arrange a meeting to discuss the matter in
detail.
2

Mediation
Where the methods outlined above do not
successfully resolve the dispute, it may be a
good idea to involve a mediator. Any dispute
that is likely to be settled by negotiation is
probably suitable for mediation. A mediator is
an independent facilitator. It is not the role of
a mediator to make decisions or to impose
solutions. The mediator will seek to facilitate a
decision that is acceptable to all parties in the
dispute. The following organisations can
provide trained and accredited mediators:
The National Mediation Helpline: Tel: 0845 60
30 809 www.nationalmediationhelpline.com
Family Mediation Helpline: Tel: 0845 60 26 627
www.familymediationhelpline.co.uk

3

Patient complaints
It may be that as part of the dispute
resolution process, those acting on behalf of
an incapacitated adult might wish to lodge a
complaint about the services he or she has
received. Health professionals should be able
to provide information about which complaint
procedures would be appropriate in the
circumstances. Initially the Patient Advice and
Liaison Service (PALS) may be able to deal with
the problem informally. PALS does not
investigate complaints but they can, where
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Mental Capacity Act tool kit •
Dispute resolution

appropriate, direct people to the formal NHS
complaints process.
4

The Court of Protection
The Court of Protection is the final arbiter in
relation to matters arising under the Mental
Capacity Act. The Court can make decisions
about whether an individual has the capacity
to make a specific decision. Where disputes
have arisen that cannot be resolved in any
other way, it may be necessary to make an
application to the Court of Protection. Cases
involving any of the following decisions
should always be brought before the Court:
• decisions about the proposed withholding
or withdrawal of artificial nutrition and
hydration from patients in a persistent
vegetative state
• cases involving organ or bone marrow
donation by a person who lacks capacity
• cases involving proposed non-therapeutic
sterilisation of a person who lacks capacity
• cases involving ethical dilemmas in untested
areas
• some termination of pregnancy cases
• cases involving ethical dilemmas in untested
areas
• all other cases where there is disagreement
that cannot be resolved by other means as
to whether a particular treatment will be in
a person’s best interests.
The Office of the Public Guardian can provide
information about making an application to
the Court of Protection. Tel: 0845 330 2900.
www.publicguardian.gov.uk/index.htm

42 British Medical Association

Mental Capacity Act tool kit •
Confidentiality and information sharing

CARD 16
CONFIDENTIALITY AND
INFORMATION SHARING
Health professionals have the same duty of
confidentiality to all their patients regardless
of age or disability. Patients with mental
health problems or learning disabilities should
not automatically be regarded as lacking
capacity to give or withhold their consent to
the disclosure of confidential information. In
the case of health information, health
professionals may only disclose information on
the basis of the patient’s best interests. Where
patients lack mental capacity to consent to
disclosure it is usually reasonable to assume
that they would want people close to them to
be given information about their illness,
prognosis and treatment unless there is
evidence to the contrary. However, where
there is evidence that the patient did not
want information shared, this must be
respected. Those close to the patient who
lacks capacity have an important role to play
in decision-making whether they have a
formal role as a proxy decision-maker
(attorney or deputy), or more informally in
terms of helping the health care team to
assess the patient’s best interests. It therefore
might not be possible to carry out these roles
without some information being provided
about the medical condition of the patient.

British Medical Association 43

Mental Capacity Act tool kit •
Confidentiality and information sharing

1

Proxy decision-makers and IMCAs
Welfare attorneys and court-appointed
deputies whose authority extends to medical
decisions have the right to give or withhold
consent to treatment and so must be involved
in treatment decisions, although where
emergency treatment is required this may not
always be possible or practicable. Where a
patient lacks capacity and has no relatives or
friends to be consulted, the Act requires an
Independent Mental Capacity Advocate
(IMCA) to be appointed and consulted about
all decisions about ‘serious medical treatment’,
or place of residence (see also card 13). The
health team must provide the attorney,
deputy or IMCA with all the relevant
information including the risks, benefits, side
effects, likelihood of success and level of
anticipated improvement if treatment is to be
given, the likely outcome if treatment is
withheld and any alternatives that might be
considered. While it will therefore be
necessary for attorneys, deputies and IMCAs to
have information that will enable them to act
or make decisions on behalf of the patient, it
does not mean that they will always need to
have access to all the patient’s records. Only
such information that is relevant to deal with
the issue in question should be disclosed.

2

Relatives, carers and friends
If a patient lacks capacity, health professionals
may need to share information with relatives,
friends or carers to enable them to assess the
patient’s best interests. Where a patient is
seriously ill and lacks capacity, it would be
unreasonable always to refuse to provide any

44 British Medical Association

Mental Capacity Act tool kit •
Confidentiality and information sharing

information to those close to the patient on
the basis that they have not given explicit
consent. This does not however mean that all
information should be routinely shared and
where the information is particularly sensitive,
a judgement will be needed about how much
information the patient is likely to want to be
shared and with whom. Where there is
evidence that the patient did not want
information shared, this must be respected.
3

Next of kin
Despite the widespread use of the phrase
‘next of kin’ this is neither defined, nor does it
have formal legal status. A next of kin has no
rights of access to a patient’s medical records
or to information on a patient’s medical
condition. On the other hand, if, prior to
losing capacity, a patient nominates a next
of kin and gives authority to discuss their
condition with them, they can provide
valuable information to the staff looking after
the patient. There are no rules about who can
and cannot be a next of kin. A patient may
nominate their spouse, partner, member of
their family or friend. A patient’s family
cannot argue who should be the next of kin
if the patient has not made a nomination as
there is no legal status attached to it. It is
important not to confuse the concept of next
of kin with the role of ‘nearest relative’ under
the Mental Health Act. The individual
authorised to undertake that role is subject to
the statutory rules under that Act which is
wholly distinct from any nomination of next
of kin.

British Medical Association 45

Mental Capacity Act tool kit •
Useful names and addresses

CARD 17
USEFUL NAMES AND ADDRESSES

British Medical Association
Medical Ethics Department
BMA House, Tavistock Square, London, WC1H 9JP.
Tel: 020 7383 6286, Fax: 020 7383 6233
Web: www.bma.org.uk/ethics
Ministry of Justice
Selborne House, 54 Victoria Street
London, SW1E 6QW.
Tel: 020 7 210 8500, Web: www.gsi.gov.uk
Department of Health
Wellington House
133-55 Waterloo Road, London, SE1 8UG.
Tel: 020 7972 2000, Web: www.doh.gov.uk
General Medical Council
Regents Place, 350 Euston Road
London, NW1 3JN.
Tel: 020 7189 5404, Fax: 020 7189 5401
Web: www.gmc-uk.org
Medical and Dental Defence Union of Scotland
Mackintosh House
120 Blythswood Street, Glasgow, G2 4EA.
Tel: 0141 221 5858, Fax: 0141 228 1208
Web: www.mddus.com

46 British Medical Association

Mental Capacity Act tool kit •
Useful names and addresses

Medical Defence Union
230 Blackfriars Road, London, SE1 8PG.
Tel: 020 7202 1500, Fax: 020 7202 1666
Web: www.mdu.com
Medical Protection Society
33 Cavendish Square, London, W1G 0PS.
Tel: 0845 605 4000, Fax: 020 7399 1301
Web: www.mps.org.uk
Northern Ireland Department of Health,
Social Services and Public Safety
Castle Buildings, Stormont, Belfast, BT4 3SJ.
Tel: 028 9052 0500, Web: www.dhsspsni.gov.uk
Nursing and Midwifery Council
23 Portland Place, London, W1B 1PZ.
Tel: 020 7637 7181, Fax: 020 7 436 2924
Web: www.nmc-uk.org
Office of the Public Guardian and the Court of
Protection (England and Wales)
Archway Tower, 2 Junction Road
London, N19 5SZ.
Tel: 0845 330 2900, Fax: 020 7664 7705
Web: www.publicguardian.gov.uk
Office of the Public Guardian (Scotland)
Hadrian House
Callendar Business Park, Callender Road
Falkirk, FK1 1XR.
Tel: 01324 678300, Fax: 01234 678301
Web: www.publicguardian-scotland.gov.uk

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Mental Capacity Act tool kit •
Useful names and addresses

Royal College of General Practitioners
14 Princes Gate, Hyde Park, London, SW7 1PU.
Tel: 020 7581 3232, Fax: 020 7225 3047
Web: www.rcgp.org.uk
Royal College of Nursing
20 Cavendish Square, London, W1M 0AB.
Tel: 020 7409 3333, Fax: 020 7647 3435
Web: www.rcn.org.uk
Royal College of Psychiatrists
17 Belgrave Square, London, SW1X 8PG.
Tel: 020 7235 2351, Fax: 020 7245 1231
Web: www.rcpsych.ac.uk
Scottish Government Health Directorate
St Andrew’s House, Regent Road,
Edinburgh, EH1 3DG.
Tel: 0131 556 8400, Fax: 0131 244 8240
Web: www.scotland.gov.uk

48 British Medical Association

British Medical Association
BMA House
Tavistock Square
London, WC1H 9JP
July 2008
www.bma.org.uk



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