Mental Capacity Act

1. Introduction and Overview

The Mental Capacity Act (MCA) sets out 5 core principles:

• A person must be assumed to have capacity unless it is established that s/he lack capacity;
• A person is not to be treated as unable to make a decision unless all practicable steps to help him do so have been taken without success;
• A person is not to be treated as unable to make a decision merely because s/he makes an unwise decision;
• An act done, or the decision made, under this Act for or on behalf of a person who lack capacity must be done, or made, in his best interests;
• Before the act is done, or the decision, regard must be had to whether the purpose for which it is needed can be effectively achieved in a way that is less restrictive of the person's rights and freedom of action.

These principles must be considered and followed in every instance when working with someone who may lack capacity to make a decision or decision for themselves.

This chapter summarises the few parts of the Act that may affect children under 16 years of age. It also explains the position of young people aged 16 and 17 years and the overlapping laws that affect them. For further details, please also see Hertfordshire Policy on Mental Capacity and associated forms Assessment of Capacity.

Within the Mental Capacity Act's Code of Practice, 'children' refers to people aged below 16. 'Young people' refers to people aged 16-17. This differs from the Children Act 1989 and the law more generally; where the term 'child' is used to refer to people aged under 18.

In this summary, as throughout the Code, a person's capacity (or lack of capacity) refers specifically to their capacity to make a particular decision at the time it needs to be made. 

Please note the lack of capacity to make a decision is caused by an impairment or disturbance that affects how the mind or brain works and is specific to time and decision specific. The impairment or disturbance may be temporary or permanent. A lack of capacity cannot be determined solely by a person's age or appearance, condition or an aspect of their behaviour, which might lead others to make unjustified assumptions about the person's capacity.

The Mental Capacity Act sets down the 2 stage test of capacity, which includes:

• Stage 1 – There must be an impairment, or disturbance in the functioning of the mind or brain.
• Stage 2 – There me mind or must be an inability to make the decision in question as a result of the impairment of, or disturbance in the functioning of, the mind or brain.

A person is unable to make a decision for themselves if they are unable:

• To understand the information relevant to the decision
• To retain that information
• To use or weigh that information as part of the process of making a decision or
• To communicate their decision (whether by talking, using sign language or any other means)

2. Children Under 16

The Act does not generally apply to people under the age of 16 but there are two exceptions:

• The Court of Protection can make decisions about a child's property or finances (or appoint a deputy to make these decisions) if the child lacks capacity to make such decisions within Section 2(1)* of the Act and is likely to still lack capacity to make financial decisions when they reach the age of 18 (Section 18(3));
• Offences of ill treatment or wilful neglect of a person who lacks capacity within Section 2(1)* can also apply to victims younger than 16 (Section 44);
• Young people aged 16-17 years.

Most of the Act applies to young people aged 16-17 years, who may lack capacity within Section 2(1)* to make specific decisions but there are three exceptions:

• Only people aged 18 and over can make a Enduring Power of Attorney;
• Only people aged 18 and over can make an advance decision to refuse medical treatment;
• The Court of Protection may only make a statutory will for a person aged 18 and over.

Assessing Competence in under 16's

The test for assessing whether a child under 16 can give valid consent differs from that of a young person aged 16 or 17. The test for children under 16 is determined by considering whether they are 'Gillick competent'. The concept of Gillick competence reflects the child's increasing development to maturity. The understanding required to make decisions about different interventions will vary considerably. A child may have the competence to consent to some information but not others. The child needs to be given the relevant information in an appropriate manner and given as much support as possible to help them make the decision.

See: NSPCC Gillick Competency and Fraser Guidelines.

3. Care or Treatment for Young People Aged 16-17

There is a range of critical areas for practitioners to consider when making decision with people who may (at times) lack capacity. These are;

• Decisions about Leaving Care;
• Decisions about moving home;
• Decisions about managing risk and controlling behaviour;
• Decision about money matters.

People carrying out acts in connection with the care or treatment of a young person aged 16-17 who lacks capacity to consent within Section2(1)* will generally have protection from liability (Section 5), as long as the person carrying out the act:

• Has taken reasonable steps to establish that the young person lacks capacity;
• Reasonably believes that the young person lacks capacity and that the act is in the young person's best interests; and
• Follows the Act's principles.

When assessing the young person's best interests, the person providing care or treatment must consult those involved in the young person's care and anyone interested in their welfare - if it is practical and appropriate to do so.

This may include the young person's parents. Care should be taken not to unlawfully breach the young person's right to confidentiality (see chapter 16 Mental Capacity Act's Code of Practice.

Nothing in Section 5 of the Act excludes a person's civil liability for loss or damage, or his criminal liability, resulting from his negligence in carrying out the act.

4. Money Matters for 16 and 17 Year Olds and Those Leaving Care

Local authorities may be appointed by the Court of Protection as a Deputy, when there is no one else who could act on behalf of the person lacking capacity to manage their financial affairs and/or personal welfare decisions.

The Local Authority will need to satisfy itself that there is no conflict of interest in exercising the duties of deputy. Financial management of an individual's monies through the local authority deputy comes under the Finance section, and is audited.

Advice for young people can be found at Money and Mental Health.

5. Legal Proceedings Involving Young People Aged 16-17

Sometimes there will be disagreements about the care, treatment or welfare of a young person aged 16 or 17 who lacks capacity to make relevant decisions. Depending on the circumstances, the case may be heard in the family courts or the Court of Protection.

The Court of Protection may transfer a case to the family courts, and vice versa. This means that the choice of court will depend on what is appropriate in the particular circumstances of the case. For example, if the parents of a 17 year old who has profound learning difficulties cannot agree on the young person's residence or contact, it may be appropriate for the Court of Protection to deal with the disputed issues as any orders made under the Children Act 1989 will expire on the young person's 18th birthday.