For decisions about health and welfare, the MCA applies to everyone over the age of 16 years (it can apply to younger people for property and financial decisions). It provides a legal framework for making decisions where a person cannot give consent for themselves.
The MCA:
- establishes a presumption that a person over 16 has the capacity to make decisions for themselves, and emphasises the need to support people to do so where possible
- sets out the test to show that a person lacks capacity for a particular decision (because of a “disturbance or impairment in the functioning of the mind or brain”, the person is unable to understand, or retain, or use / weigh the information relevant to the decision, or to communicate the decision). This is usually assessed by the clinician / professional who wants to offer treatment or care, and must be specific to that particular decision and the time the decision must be made
- requires that where a person lacks capacity for a decision, that decision must be made in their best interests. This is very widely defined, and must always be tested against the question whether there is a less restrictive way to meet their best interests
- provides for appointment of Lasting Powers of Attorney, or court appointed deputies, to make decisions in some cases (see below)
- establishes the Court of Protection as a forum to resolve disputes as a last resort.
