Content area
Full Text
Introduction
The MCA (2005) is a significant piece of legislation in England and Wales. One aim of the developers of this act was to bring about a paradigm change, in terms of viewing all citizens, including those with a range of impairments, as bearers of a set of rights. This shift has led to an environment in which law, policy and practice guidance in health and social care fields privilege autonomy, and aim to put the individual at the heart of decision making (House of Lords Select Committee on the Mental Capacity Act 2005, 2013). A number of other countries have enacted similar legislation. For example, a survey of 32 European countries found that most had legal and policy frameworks which protect individual rights to some degree for those whose decision making is impaired because of dementia (Alzheimer Europe, 2016).
The fact that 2m people in England and Wales are estimated to lack the capacity to make some decisions for themselves highlights the importance of capacity assessments in contemporary care settings (CQC, 2016). Each of these individuals will at some point need decisions or often a whole series of decisions to be made about interventions in relation to health and care.
A key distinction, in the framework of the Mental Capacity Act (MCA), is between those patients or service users who are deemed to have the capacity to make decisions for themselves, and those who are not, and who are then subject to decisions being made for them on a “best interests” basis. Health and social care professionals in the UK now routinely make assessments of mental capacity in relation to a whole range of decisions about care and treatment.
Capacity assessments must be specific to a particular decision but there may be multiple decisions to be made, and therefore multiple assessments required. These range from those relating to day-to-day routines of living such as food and clothing choices, to significant decisions about surgery or moving out of a family home into a care home.
The required assessment of capacity is set out in a two-stage test within Sections 2 and 3 of the MCA. This includes a diagnostic test, which requires that the decision maker identifies the impairment that is thought to lead to...