The MCA was introduced into England and Wales in April 2007 and applies to all professionals involved in providing health and social care, including doctors, nurses, allied health professionals and care staff. This is supported by a Code of Practice 2007 which gives guidance on its implementation and has statutory force and can be found here.

The Act states that it should be assumed that an adult (aged 16 or over) has full legal capacity to make decisions for themselves (the right to autonomy) unless it can be shown that they lack capacity to make a decision for themselves at the time the decision needs to be made. This is known as the presumption of capacity. The Act also states that people must be given all appropriate help and support to enable them to make their own decisions or to maximise their participation in any decision-making process.

The Act outlines how capacity should be assessed by healthcare professionals and procedures for making decisions on behalf of people who lack mental capacity. The MCA states that any decision made, or action taken, on behalf of someone who lacks the capacity to make the decision or act for themselves must be made in their best interests.

The Act outlines:

• Who can make decisions for people who lack capacity
• In which situations this can be done
• How they should go about this

The aim of this policy is to ensure that throughout the work of Language Empire we will promote the welfare of adults by ensuring that all staff are aware of the principles of the MCA. We aim to do this by informing all staff of the MCA upon induction and refresher training is provided every two years as a minimum.

Language Empire is committed to implementing this policy and the practices it sets out. We offer learning opportunities and make provision for appropriate MCA training to all staff and will also ensure the MCA Code of Practice is available to all staff at all times. This policy will be made widely accessible to staff online, both for employed staff on our internal HR system and for freelance linguists on the Linguist Hub portal.  

The Linguist Hub has a dedicated section on MCA where there is access to learning resources, which can be referred back to at any time.

For employees, failure to adhere to the MCA Policy could lead to dismissal or constitute gross misconduct. For freelancers, their registration with Language Empire may be terminated.

Language Empire recognises the responsibility of professionals to ensure adherence to the MCA. The Act is intended to assist and support people who may lack capacity and to discourage anyone who is involved in caring for someone who lacks capacity from being overly restrictive or controlling. The Act also aims to balance an individual’s right to make decisions for themselves with their right to be protected from harm if they lack capacity to make decisions to protect themselves.

Joint working and effective collaboration is essential to promote the rights and freedom of individuals.

1. A person must be assumed to have capacity unless it is established that they lack capacity by a clinical professional
2. A person is not to be treated as unable to make a decision unless all measures have been taken to help them to do so have been taken without success
3. A person is not to be treated as unable to make a decision merely due to making unwise decisions
4. An action or decision made by the professional under the Act for or on behalf of a person who lacks capacity must be made in the person’s best interests
5. Before the decision is made, regard must be held as to whether the purpose for which it is needed can be as effectively achieved in a way that it is the least restrictive of the person’s basic rights and freedom.

Having mental capacity means that a person is able to make their own decisions by understanding information given. The professional should always start from the assumption that the person has the capacity to make the decision in question.

Professionals must also be able to show that they have made every effort to encourage and support the person to make the decision themselves.

Everyone must also remember that if a person makes a decision which is considered eccentric or unwise, this does not necessarily mean that the person lacks the capacity to make the decision.

Capacity is decision and time specific, assessing capacity refers to assessing a person’s ability to make a particular decision at a particular moment in time, rather than being an overarching judgement about an individual’s ability to make decisions in general. Staff cannot decide that someone lacks capacity based upon age, appearance, condition or behavior alone.

 

The MCA 2005 defines lack of capacity as:

 

A person lacks capacity in relation to a matter if, at the material time, he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain. 

 

The Act assumes that a person has capacity until it is proven otherwise.

Capacity should be assessed when a person’s mental capacity to consent to their treatment or care is in doubt. Capacity may be called into question for a number of reasons including:

• An individual’s behavior or circumstances
• Where concern about capacity has been raised by someone
• Where a person has been previously diagnosed with an impairment or disturbance that affects the way their mind or brain works
• A previous mental capacity assessment has shown lack of capacity to make a decision

Professionals must have reasonable belief that the individual lacks mental capacity to have legal protection under the MCA 2005 for making decisions on a person’s behalf. To have reasonable belief, they must take certain steps to establish that the person lacks mental capacity to make a decision or consent to an act at the time that the decision or consent is needed.

They must establish and be able to show that the decision or act is in the person’s best interests. A mental capacity assessment must be completed and helps demonstrate that on a balance of probabilities it is more likely than not that the person lacks capacity. This be recorded in the professional’s notes why they have come to the conclusion that capacity is either present or lacking for the particular decision.

Not all decisions will need a formal mental capacity assessment and the outcome can be recorded within the service user records and care plan. Consent for the person’s care plan will cover many day to day decisions, but there will be times when a formal mental capacity assessment should be undertaken. Formal mental capacity assessments to assess the mental capacity for an individual to make a particular decision at a particular time should be kept in the patient care records.

 

Examples of when to undertake a formal capacity assessment include, but are not exclusive to:

• Use of bed rails
• Use of restraint
• Any invasive procedures
• Covert medication
• Any procedures where the resident is handled for the provision of care and treatment
• Medical photography

Occasionally an individual may object to having a mental capacity assessment. Where this happens, it is good practice for the professional to explain what the mental capacity assessment is and how it will help to protect their rights. There should be no undue pressure for the person to have the assessment, as a person always has the right to refuse.

If it is clear that the person lacks the mental capacity to consent to the assessment and there are concerns or risks about the person’s care and treatment, then the assessment can usually go ahead as long the assessment is in the person’s best interests. This decision will be made by the clinical professional at the time.

The MCA covers all types of decisions, big and small. This may be from the day-to-day, such as what to wear or eat, through to more serious or complex decisions, about, for example, where to live, whether to have surgery or how to manage finances or property.

The MCA applies to situations where someone is unable to make a particular decision at a particular time because of the way their mind or brain is affected. When suffering from depression, infection or suffering from delirium, an individual may be unable to make a decision, but when they have recovered, they can.

People should receive support by the medical professional to help them make their own decisions, before it is concluded that they may lack capacity to consent to a particular decision. It is important to take all possible steps to help them reach a decision themselves.

It is important for the application of the MCA to have a fundamental understanding of the best interest’s principle.

If a person has been assessed as lacking capacity then any action taken, or any decision made for, or on behalf of that person, must be made in their best interests (principle 4). The person who has to make the decision is known as the ‘decision-maker’ and normally will be the carer responsible for the day-to-day care, or a professional such as a doctor, nurse or social worker where decisions about treatment, care arrangements or accommodation need to be made. It is imperative that interpreters understand that they do not make any decisions regarding the patient’s treatment or care.

The MCA provides a non-exhaustive checklist of factors that medical professional must work through in deciding what is in a person’s best interests and achieve least restrictive practice (principle 5).

Some of the factors to take into consideration are:

• Do not discriminate or make assumptions about someone’s best interests merely on the basis of the person’s age or appearance, condition or any aspect their behavior
• Take into account all relevant circumstances
• Will the person regain capacity? If so, can the decision wait
• Involve the individual as fully as possible
• Take into account the individual’s past and present wishes and feelings, and any beliefs and values likely to have a bearing on the decision
• Consult as far and as widely as possible

It is vital that medical staff record the best interest’s decision.

There are 2 types of LPA:

• Health and personal welfare
• Property and financial affairs

Lasting power of attorney (LPA) is a legal document that lets the ‘donor’ appoint one or more people (known as ‘attorneys’) to help them make decisions or to make decisions on their behalf. This gives them more control over what happens to them if they have an accident or an illness and can’t make their own decisions if they ‘lack’ mental capacity.

A health and personal welfare LPA allow the attorney to make specific decisions when the person is no longer able to consent to treatment or care. The attorney is able to make decisions about day to day care, consenting or refusing medical treatments, moving accommodation, refusing life sustaining treatment, assessments for provision of community services, social activities and more.

A property and affairs LPA allow the attorney to make specified financial decisions when the person lacks capacity, but unlike a health and personal welfare LPA, a property and affairs LPA can be used even if the person has capacity (with permission).

A lasting power of attorney must be registered with the Office of the Public Guardian before it is valid and can only be used once the person who made it no longer has capacity. Records must reflect whether an LPA has been registered and what decisions are given to the attorney.

The MCA (2005) creates ways for people 18 and over, and to be able to make a decision in advance to refuse treatment if they should lack capacity in the future.  An advance decision to refuse treatment that is not life sustaining does not need to be in writing, but the person must ensure the relevant professionals know what treatment is being refused.

 

For an advance decision to refuse treatment to be valid, health professionals must try to establish if:

 

• The person has done anything since making the advance decision that would clearly suggest that they no longer agree with the advance decision
• The person has withdrawn the advance decision
• Power has been given to an attorney to make the same treatment decision as covered in the advance decision
• The person would have changed their mind if they had known more about the current circumstances

 

For an advance decision to refuse life sustaining treatment to apply, the person must no longer have capacity to make the decision for themselves. The advance decision must be in writing, stating exactly what treatment is to be refused and set out the circumstances when the refusal should apply, even if there is a risk to life. The advance decision must be signed by the person refusing the treatment with the signature witnessed and signed in the presence of the patient.

Many aspects of the Mental Capacity Act apply to people aged 16 and over who may lack capacity to make a specific decision. However, the legislative framework for those cared for under The Children’s Act 1989 will continue to apply until they are discharged from such care proceedings.

There are two elements of the Act than can be applied to young people under the age of 16: Decisions about property or finance made by the Court of Protection, and offences of ill treatment and wilful neglect.

For young people aged 16 and 17, the capacity assessment or Gillick competency test must be used to determine whether the health or social care decision should be subject to the processes and provisions outlined within the Act. Depending upon the decision staff may then use the Children Act 1989 or the Mental Capacity Act to proceed with making or proposing a decision for the young person lacking capacity. An adult with parental responsibility may consent to a proposed decision on behalf of a young person who lacks capacity or Gillick competency.

The Act defines use of restraint as the use of force-or threaten to use force-to make someone do something they are resisting, or restrict a person’s freedom of movement, whether they are resisting or not.

The Act only gives limited liability for use of restraint. Actions may not be lawful where there is an inappropriate use of restraint or where a person who lacks mental capacity is deprived of their liberty without appropriate authorisation.

The Act recognises that in some cases there is no other way to provide care and treatment other than by depriving a person of their liberty.

The focus is not on the person’s ability to express a desire to leave, but on what those with control over their care arrangements would do if they sought to leave.

For a person to be deprived of their liberty, they must be subject both to continuous supervision and control and not be free to leave.

Following the ruling it is NOT relevant if the individual doesn’t object or complies with the deprivation, the relative normality of the placement or the reason or purpose behind the placement is NOT relevant.

Significantly the judgement highlighted that deprivation of liberty occurs in a domestic or supported living arrangements as well as hospitals and care homes.

The Act provides a legal framework and two distinct routes for authorising deprivation of liberty: 1. The Deprivation of Liberty Safeguards (DoLS) for people in hospitals and care homes and 2. The Court of Protection for people living in all other community settings.

DoLS were created to help protect vulnerable people who lack capacity to consent to care and treatment that might deprive them of their liberty, where this is in their best interests to protect them from harm.  DoLS are an extra protection for vulnerable people to ensure that deprivation is only used when necessary and that any deprivations are lawful and, in the person’s, best interest.

DoLS only relate to people aged 18 or over, who are not detained under the Mental Health Act 1983, and who are accommodated in a registered hospital or care home.

A person may only be deprived of their liberty if:

• it is in their best interests to protect them from harm
• It is appropriate and proportionate to the threat of harm
• It is the least restrictive option

• a decision has been made by the care home or hospital that the person will not be released into the care of others, or permitted to live elsewhere unless the care home or hospital considers it appropriate
• the person is under continuous supervision and control
• the person is being restrained
• the care home has refused a request by carers to discharge a person into their care
• the person is not free to leave the care setting without permission
• the person does not have access to friends, family or social contacts
• sedation has been used to admit the person to the care setting that has been resisted

DoLS templates and further information can be found here

All staff and freelancers receive training on the MCA by accessing the eLearning courses:

 

Mental Health Act

Deprivation of Liberty

Safeguarding Children Level 1 and 2

Safeguarding Adults Level 1 and 2

 

These courses are mandatory, and refreshers are timed at every 2 years.

Further training such as courses are attended by the staff.

The policy is available online for all freelancers on the Linguist Hub and on People HR for internal staff. Any changes in the policy are highlighted in training. Dissemination of the final policy is the responsibility of the author. They must ensure the policy is uploaded on People HR and the Linguist Hub by Human Resources. The author is responsible for informing the Communications team to issue a nationwide notification of the existence of the policy.

The policy will be reviewed every two years or earlier if the national policy or guidance changes are required to be considered. The policy will be uploaded to the Linguist Hub and People HR by the human resources department.

The policy will be made available to all freelancers and internal staff.

We are planning to raise awareness of the Mental Health Awareness Week in May 2020 in which internal staff and interpreters will receive notifications containing information on the subject.

We have two internal mental health first aiders who are trained to address any issues or questions regarding mental health.

For advice and support please use the contact numbers below

Useful Contact Numbers
Linguist Relations department	0330 202 0349