The MCA Code of Practice frequently uses the term the “decision-maker”. However, in general, it is important to understand that the Act does not identify any formal decision-makers. Wherever possible, a decision as to what is in the best interests of a person unable to take the relevant decision would be reached informally and collaboratively between those involved in their care or interested in their welfare, whether that be paid/professional or unpaid.  The only exceptions to this are where there is an Lasting Power of Attorney (LPA), Advanace Decision to Refuse Treatment (ADRT) or the Court of Protection make the decision.

In this short video you will see how John, who has a learning disability is supported to make his needs known, assess his capacity and identify who the decision maker is for his medical treatment.

Case study

You can access a case study on the MCA area of our learning zone, the case has been anonymised and is not from the local area but will be useful for use in team meetings and training to explore the following questions;

• Where is the Mental Capacity Act relevant in the case? 
• Where was the Act applied correctly? 
• Were there any missed opportunities?

Best Interest Assessments

39 Essex Chambers have published a guide to best interest assessments. It aims to provide best interests decision makers with a brief overview of the relevant law and principles. Its focus is on how to apply the MCA 2005 principles when assessing best interests and how to record your assessment, primarily in the context of health and welfare decisions.  

Advance Decisions to Refuse Treatment

Having an ADRT is an additional safeguard for adults who may have lost the capacity to make decisions about their treatment. 

In this short video Jean with COPD now has dementia.  Jean attends the GP surgery with her husband and has an ADRT in place.  The GP will discuss with Jean and her husband her previoulsy expressed wishes. 

Who is the decision maker?

Jean then attends an appointment with the consultant who suggests surgery for a hip replacement and explores who is the decision maker, assessment of capacity and lasting powers of attorney.  Watch here to find out more.

A lasting power of attorney (LPA) is a legal document that lets you (the ‘donor’) appoint one or more people (known as ‘attorneys’) to help you make decisions or to make decisions on your behalf.

This gives you more control over what happens to you if you have an accident or an illness and cannot make your own decisions (you ‘lack mental capacity’).

LPA v ADRT

You can access a useful guide produced by Edge Training Ltd which compares the process, powers, costs and limitations of each of the decision making roles here.

Next of Kin

The term ‘Next of Kin’ is often used in Health and Social Care as a euphemistic shorthand for ‘Who is the person we communicate with about you and who do we contact when you are dead?’  In law the term has no status when you are alive - it is misleading too because it does not clarify if this is the person who is your nearest relative or the person most important to you. Indeed, these are often different people.  There is actually only one situation where ‘next of kin’ is legally valid; this is if you die
without leaving a will. In this case, your estate will be passed on to the person or people who are your closest blood relation, also termed as your next of kin. 

This helpful leaflet clarifies how people can plan ways, with those they love, to ensure their wishes are taken into account if through illness they cannot take decisions for themselves. 

The Court of Protection make decisions on financial or welfare matters for people who can’t make decisions at the time they need to be made (they ‘lack mental capacity’).

The Court of Protection are responsible for:

• deciding whether someone has the mental capacity to make a particular decision for themselves
• appointing deputies to make ongoing decisions for people who lack mental capacity
• giving people permission to make one-off decisions on behalf of someone else who lacks mental capacity
• handling urgent or emergency applications where a decision must be made on behalf of someone else without delay
• making decisions about a lasting power of attorney or enduring power of attorney and considering any objections to their registration
• considering applications to make statutory wills or gifts
• making decisions about when someone can be deprived of their liberty under the Mental Capacity Act

CSAB are sharing learning resources for practitioners for personal development and can also be useful during team meetings and/or supervision sessions.

CSAB MCA learning zone

You can find a range of information and resources on our website

Social Care Institute for Excellence

SCIE have produced a whole series of short learning videos for practitioners based on the 5 principles of the MCA.  Watch here 

MCA easy read guide

You can access an MCA easy read guide and summary here

Legal advice and guidance

39 Essex Street Chambers has developed an unrivalled set of resources for those seeking to apply and understand the Mental Capacity Act 2005, as well as to understand the place of mental capacity within the law more generally.  There is a dedicated MCA section of the website which gathers together sets of resources which you can access.

Edge Training Ltd resources

There are a series of briefings and information sheets intended to support practitioners working with the MCA.  This inlcudes case law updates, guidance and templates find out more here