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Section 1 of the Mental Capacity Act sets out its core principles:
Principle 1: Presumption of Capacity: A person must be assumed to have mental capacity and therefore the right to make their own decisions, unless it is established otherwise. If it is established that a person lacks capacity then professionals would make best interest decisions on the person’s behalf, taking whatever views and wishes of theirs that are known into consideration. In order to even begin doing a test of capacity, a practitioner must already have reason to believe that the person lacks capacity. In order to make best interest decisions then there would need to be a written record of a capacity test showing how it has been concluded that the person lacks capacity to make that specific decision.
Principle 2: A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success: If there is a belief that a person lacks the capacity to make a decision then it must be considered whether they could make the decision with support. The question must be asked as to what is affecting the person’s capacity. For example what barriers are there to their understanding, retention of information, weighing up or communicating, and how can these be overcome? For example is there any medication or psychological therapy that could help them regain capacity; or new skills they could learn that would enable them to make the decision? Would providing key information in other formats more appropriate and accessible for the person such as easy-read be of help? Also giving them more time and head-space to process such information? Are there any people that could support the person to make the decision e.g. by enabling them to be informed of, understand and discuss impartial information pertinent to the decision at hand, without bombarding them with too much information or trying to unduly influence them? And is there anything further that could help the person to communicate e.g. communication aids, alternative methods of communication or interpreters?
Principle 3: A person is not to be treated as unable to make a decision because they make an ‘unwise’ decision: A person’s friends, family and professionals involved in their care and support will have their own ideas about what is best for the person. If the person makes a decision that goes against all this then this in itself shouldn’t be used as evidence that the person lacks the capacity to make that decision. A very good example of this is people smoking. Many people who have full capacity still smoke. They can understand and retain the possible health risks. They can weigh up the pros and cons of smoking, and simply decide that they’d rather risk lung cancer than have to go through a nicotine withdrawal or not be able to smoke. There are billions of such people in the world and of course it would be a breach of their human rights if they were all deprived of their liberty so as to prevent them from smoking, with the pretext that they must lack capacity because they are smoking. Instead, smoking should simply be seen as an ‘unwise’ decision made by someone who has capacity.
It might also be useful to explore why the person is making such a decision if the decision really does seem irrational. For example someone might be putting pressure on the person or there might be an understandable reason why they’re not going for an alternative option, e.g. they might be faced with moving to an excellent nursing home but it won’t be possible for them to continue to attend their mosque or other place of worship due to distance, and this is something that is extremely important to them.
Principle 4: Any act done for a person who lacks capacity must be done in that person’s ‘best interests’: A ‘best interests’ decision would be one which not only considers the person’s clinical best interests but also takes into account all relevant circumstances, the forefront of consideration being the views and wishes of the person themselves, as well as any close friends and family appropriate to consult.
Professionals would usually tend to have a parental view about what someone’s best interests are (what’s good for them rather than what they want). If the views and wishes of the person are impossible to obtain then their previous wishes and beliefs should be taken into account if any are known. Of course all people should be treated equally within this process and not discriminated against on the basis of sex, age, ethnicity etc. If the person is likely to regain capacity and the decision doesn’t need to be made as a matter of urgency then it should be put off until the person is able to make it for themselves if possible.
Principle 5: Least Restrictive option – “Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action”. The question must be asked as to whether there are any alternative options that would interfere less with the person’s rights and freedom, and where the risks don't outweigh the benefits.