The Mental Capacity Act and its Safeguards
The Mental Capacity Act (MCA) is intended to safeguard and encourage individuals with limited mental ability to make decisions regarding their treatment and care. It applies to those who are 16 years of age or older (NHS.UK 2022). An amendment to the Mental Capacity Act 2005 is Deprivation of Liberty Safeguards. They are valid in Wales and England only. Restrictions and restraints are permissible under the MCA but only when they are in the best interests of an individual (Tanner 2022). More protection will be needed if the constraints and restraints may deprive individuals of their liberty. These are known as the Deprivation of Liberty Safeguards. MCA was created to unify, consolidate, and clarify the law concerning the treatment and care of individuals with limited capacity. The MCA is critical to providing effective and high-quality healthcare (Providers et al. 2022). The Act is crucial to patient engagement and quality enhancement. It establishes patient rights and important protections for the weak and the duties of those involved in the care. It is governed by common law and is created to protect individuals. The Act established new authorities and organizations to safeguard people and simultaneously clarify what staff must do. The paper aims to shed light on the changes that the events mentioned above have brought about to social and health care in the United Kingdom. The paper will also discuss the law and historical background, key principles with suitable examples, followed by a summary based on an argument.
The Act offers a structure for deciding whether or not individuals can make choices and, if so, what must be undertaken. The Act has brought significant changes to social and healthcare in the UK (NHS.UK 2022). It codifies common law and best practice concepts relating to individuals who have limited capacity and those who make choices for them. It updates and reforms existing statutory frameworks for Court of Protection receivers and lasting powers of Attorney (Taggart 2020). The historical and legal background of the MCA is that it has been in effect since 2007, and the MCA’s main goal is to encourage and protect legal decision-making. The MCA was signed into law over a decade earlier. The MCA was a major milestone in the legal environment, characterized as a “visionary piece of law.” It was a success of autonomy in that it acknowledged that individuals must have a say in their personal choices to the extent practicable (Alghrani, Case and Fanning 2016). It accomplishes it in two different methods: it empowers individuals to make their own decisions whenever possible, and it protects individuals with limited capacity by offering a comprehensive structure that integrates individuals at the centre of the choice process and allows individuals to prepare ahead for a point down the road when their function may get impaired, for any multitude of reasons. Constraints imposed on individuals with limited mental ability may lead to “deprivation of liberty” (NHS.UK 2022).
The Act could encompass everybody at the moment, but it will undoubtedly include many individuals with whom social workers will interact. It creates a legislative structure for representing the interests of individuals who lack the mental ability to make choices for themselves. According to reports, over 900,000 adults in England live with learning difficulties, and over 800,000 people living with dementia across the UK (NHS.UK 2022). A total of above 300,000 people are hospitalized in the UK each year due to an acquired brain injury. As the incidence rates of dementia rise, it is more important than ever for healthcare professionals, especially nurses, to grasp the MCA Act and how it can be implemented in clinical practice. Several choices could never be undertaken for anyone who suffers from mental health problems by another individual under the Act. The following are examples of choices that cannot be taken on behalf of an individual, like entering into a civil partnership, getting married, presenting children up for adoption or having sex, and casting votes in elections (NHS.UK 2022).
Historical and Legal Background
There are five fundamental principles underlying the mental capacity act (Huziej 2021). Principles 1 to 3 will aid the process before or during determining whether an individual has limited capacity. Once determined that capability is an issue, principles 4 and 5 are applied to help individuals decide. The Mental Capacity Act’s section 4 defines the notion of best interests. According to the law, any individual act performed or choice taken within the Act or on the part of an individual who requires assistance should be completed or produced in his best interests (Huziej 2021). Until one’s incapacity is proven, a person [‘P’] should be considered competent. The principles state that an individual should not be considered incompetent to decide all reasonable efforts to support the person have failed. As part of a larger plan to ensure that patients are engaged in, and consent to the treatment plan, the rights to family life and liberty are represented in care planning suggestions. Such rights must be represented in choices made in the name of individuals who lack mental capacity in the individual’s best interests (Huziej 2021). An individual should not be considered incompetent in deciding solely since he selects a poor one. Whatever is performed on somebody’s part which lacks ability should be performed in their best interests. While acting or coming to a conclusion on account of someone who lacks mental capacity, consider if it is possible to do so in a less restricting manner to the patient’s freedom and rights of action. The Act mentions the duty of care. Section 5 of the Act emphasizes that when an individual cares for someone with limited capacity, the individual delivering care can deliver care without sustaining legal liability (Providers et al. 2022). The accurate evaluation of best interests and ability is crucial. When an individual intervenes with a person’s property or body during the regular course of care, it will include conduct that otherwise might lead to a crime or civil offence, such as administering an injection or purchasing things with the individual’s money. In April 2007, the Act brought some changes by introducing new measures. It includes a new criminal offence of an individual with limited capacity, a self-governing mental advocacy service started in England and a code of practice that explains how individuals can make sure they comply with the Act. In October, the mental advocacy service was extended to Wales in the same year. New Public Guardian’s Office and New Court of Protection were established, and the Act mentioned the lasting powers of Attorney and deputies (O’Sullivan 2021).
Service users have the right to autonomy, which includes the ability to make ‘poor’ health care decisions. Patient autonomy has substituted the benevolence concept at the centre of moral clinical practice by patient autonomy, but the contentious range between paternalism and autonomy creates a dangerous equilibrium (Hansson and Fröding 2021). The requirement of informed consent is one of the methods that the law in England and Wales preserves patient autonomy. The permissible limitations of paternalism will be affected by whether autonomy is merely functional or has significance beyond P’s well-being. Definitions of paternalism are infamously elusive (Bartlett 2020). Anything an individual does to limit an individual’s freedom of action should be the least restrictive alternative that meets the necessity. Vulnerable individuals should be allowed to stay while limiting their freedoms and rights as little as feasible, and it is not limited to allowing them to do anything they want. Thus, the MCA aims to empower individuals to make choices, safeguard the weak from paternalism’s abuses, and orchestrate a culture change in views toward mental disability and incompetence in this approach (Bartlett 2020). The MCA is a necessary foundation for social and health care practitioners, especially while dealing with individuals who are incapable of making any decision regarding treatment or care, either temporarily or permanently.
Key Principles and their Application
Clinicians and commissioners may guarantee that proper ability reviews are conducted and that choices taken in the name of disabled individuals are in their best interests if they have full knowledge of the Act. It was not uncommon in the earlier times for some individuals, such as those who have a serious mental illness, to have choices made for them. It led to many injustices, including compulsory treatment, widespread institutionalization, and decreased financial autonomy (Barcham and Bogg 2018). It prioritizes an individual with limited capacity’s wishes and desires in any decision-making procedure. In 2015, the Chief Social Worker convened an MCA meeting, bringing together delegates from various disciplines and social workers from England (Barcham and Bogg 2018). It included the police, NHS providers, high street banking institutions, NHS commissioners, third sector companies and high street solicitors. The goal was to see how the organizations collaborated with the social workers to implement the MCA to benefit the clients (National Mental Capacity Forum 2018). The conference concluded with several recommendations, the most important of which was the necessity to work on collaborating with others. While an individual has the ability, the Act permits them to prepare in advance for a time because they may lose it by appointing an individual to make choices regarding their assets and interests and their health and well-being. According to the Act, individuals have the right to refuse treatment if they lose strength in the future. It also allows for the rejection of end-of-life care, although such requests must be made in writing (bcpft.nhs.uk 2022).
There are some cases related to MCA. The Supreme Court’s landmark judgment on the ability to engage in sexual activity is one case. The Supreme Court has explored the idea of mental capacity under the MCA regarding an individual’s ability to comprehend whether he can have sex. The case is known as Local Authority v JB. JB is a gentleman in his late thirties and has Asperger’s syndrome and severe epilepsy (Court 2021). He is overseen by a care assistant and receives assistance from the local government whenever he goes out. JB wishes to have a partner and a physical connection. The local authority has determined that he cannot have uncontrolled contact with women because of his claimed past behaviour against women. JB was originally found capable of consenting to sexual interactions by the Court of Protection (Court 2021). However, the Court of Appeal objected, mentioning that to have the ability to get engaged in sexual activity, the partner should have the ability to consent to such activity as per the MCA 2005. As JB could not comprehend it, the Court of Appeal determined that he lacked the mental ability to perform sexual activity. The Official Solicitor challenged the verdict who happens to be JB’s litigation acquaintance. The Supreme Court decisively denied JB’s appeal (Court 2021). Medical institutions practitioners are responsible for understanding and safeguarding the rights of the people undergoing treatment and care, particularly those who are weak due to limited capacity to make decisions for themselves. Similarly, commissioners would want to know that the rights of individuals for whom they are procuring services are respected and carried out in practice. The code of practice explains how the MCA operates regularly and offers guidelines to those who deal with people lacking capacity (Legislation.gov.uk 2022).
Patient Engagement and Quality Enhancement
The use of the MCA in individual care must not be considered apart from delivering the essential medical services. The Act is essential to a hospital’s attempts to safeguard and advocate for the rights of those who use its facilities. Everybody related to the care, management, and support of the public aged 16 and up in Wales and England who cannot take all or some choices for themselves is covered by the Mental Capacity Act 2005. Therefore, from the above discussion, it can be said that the Act has certainly brought significant health and social care changes, and it is ideal to agree with the statement. The MCA defines obligations for those who deliver care, the institutions that hire them, and those who commission services by creating a legislative framework of rights that strengthen and protect the population who may lack ability. Violence, negligence, and ill-treatment of disadvantaged people can be prevented, and quality of service can be enhanced by safeguarding and implementing their rights. The Act is an important aspect of the foundation for delivering superior services. Moreover, failing to abide by the law may subject the provider and the commissioner to legal proceedings. Institutions do not want to injure those in their care, nor do they want to risk losing their image and its dangers.
References
Alghrani, A., Case, P. and Fanning, J., 2016. The mental capacity act 2005—Ten years on. Medical Law Review, 24(3), pp.311-317.
Barcham, C. and Bogg, D., 2018. EBOOK: The Pocketbook Guide to Mental Capacity Act Assessments. McGraw-Hill Education (UK).
Bartlett, P., 2020. At the interface between paradigms: English mental capacity law and the CRPD. Frontiers in Psychiatry, p.881.
bcpft.nhs.uk, 2022. [online] Bcpft.nhs.uk. Available at: <https://www.bcpft.nhs.uk/documents/policies/m/1888-mental-capacity-act-advance-decision-to-refuse-treatment-advance-statement/file> [Accessed 25 April 2022].
Court, T., 2021. A Local Authority (Respondent) v JB (by his Litigation Friend, the Official Solicitor) (AP) (Appellant) – Press Summary. [online] Supremecourt.uk. Available at: <https://www.supremecourt.uk/press-summary/uksc-2020-0133.html> [Accessed 25 April 2022].
Hansson, S.O. and Fröding, B., 2021. Ethical conflicts in patient-centred care. Clinical Ethics, 16(2), pp.55-66.
Huziej, M., 2021. What are the five key principles of the Mental Capacity Act?. [online] CPD Online College. Available at: <https://cpdonline.co.uk/knowledge-base/safeguarding/principles-of-the-mental-capacity-act/> [Accessed 25 April 2022].
Legislation.gov.uk, 2022. [online] Legislation.gov.uk. Available at: <https://www.legislation.gov.uk/ukpga/2005/9/pdfs/ukpgacop_20050009_en.pdf> [Accessed 25 April 2022].
National Mental Capacity Forum, 2018. [online] Assets.publishing.service.gov.uk. Available at: <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/708149/nmcf-annual-report-2017.pdf> [Accessed 25 April 2022].
NHS.UK, 2022. Introduction to Dementia. [online] Available at: <https://www.gmmh.nhs.uk/dementia-intro/> [Accessed 25 April 2022].
NHS.UK, 2022. Mental Capacity Act. [online] nhs.uk. Available at: <https://www.nhs.uk/conditions/social-care-and-support-guide/making-decisions-for-someone-else/mental-capacity-act/#:~:text=The%20Mental%20Capacity%20Act%20(MCA,people%20aged%2016%20and%20over.> [Accessed 25 April 2022].
O’Sullivan, O.P., 2021. Financial abuse, statutory provisions and the courts: adequacy and analysis of enduring and lasting powers of Attorney. The Journal of Adult Protection.
Providers, C., (MCA), M., (DoLS), D. and glance, D., 2022. Deprivation of Liberty Safeguards at a glance. [online] Social Care Institute for Excellence (SCIE). Available at: <https://www.scie.org.uk/mca/dols/at-a-glance> [Accessed 25 April 2022].
Providers, C., (MCA), M., MCA, I. and 2005, M., 2022. Mental Capacity Act 2005. [online] Social Care Institute for Excellence (SCIE). Available at: <https://www.scie.org.uk/mca/introduction/mental-capacity-act-2005-at-a-glance#:~:text=for%20any%20number-,Key%20messages,or%20some%20decisions%20for%20themselves.> [Accessed 25 April 2022].
Taggart, J., 2020. Powers of Attorney and ‘Lack of Capacity’under the Mental Capacity Act 2005: A Narrowing of the s 44 Offence? R v Kurtz [2018] EWCA Crim 2743. The Journal of Criminal Law, 84(1), pp.74-82.
Tanner, A., 2022. ‘Best Interests’ Decision-Making and the Role of the Court in Protecting Patients with Prolonged Disorders of Consciousness (Doctoral dissertation, The Open University).
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