Mental Capacity Act in Education

          How does the Mental Capacity Act work? 

• The MCA empowers people to make decisions for themselves as much as possible. 
• The MCA protects people who lack capacity by providing a way of putting people at the heart of the decision-making process.​ 
• The MCA allows people to plan ahead for a time in the future when they might lack the capacity to make decisions. 

When might a person lack capacity?  

A person may lack mental capacity to make decisions temporarily or permanently.   

Examples of permanent lack of capacity may be because of a form of dementia, a learning disability or brain injury. 

Examples of temporary or short-term lack of capacity can include some mental health problems, experiencing confusion as a side-effect of medication or if you’re unconscious. 

The MCA is underpinned by 5 Key Principles:

Principle 1 – Presumption of Capacity 

Principle 2 – Individuals are supported to make their own decisions

Principle 3 – Unwise Decisions

Principle 4 – Best Interests

Principle 5 – Least Restrictive Option

MCA Principle 1 – Presumption of Capacity 

Adults (those aged 16 and older) have the right to make their own decisions.

The MCA supports the presumption that all adults have capacity and can make decisions unless proven otherwise.

MCA Principle 2 – Individuals are supported to make their own decisions 

Every effort should be made to encourage and support adults to make their own decisions. 

Even if lack of capacity is established it is important to involve the individual person as much as possible in decision-making.

MCA Principle 3 – Unwise Decisions 

An unwise decision is not a reason for assuming a lack of capacity. 

People have an intrinsic right to make decisions others may regard as unwise.  

MCA Principle 4 – Best Interests 

Once lack of capacity is established, section 4 of the MCA states that: 

‘Any act done, or a decision made, under this Act or on behalf of a person who lacks capacity must be done, or made, in their best interests‘. 

There is a legal requirement for all Decision Makers to apply the Best Interests Principle when making decisions on behalf of a person who lacks capacity. 

MCA Principle 5 – Least Restrictive Option 

When making decisions for or on behalf of a person lacking capacity, the following must be considered: 

• Whether it’s possible to decide or act in ways that would interfere less with a person’s rights and freedom of action, or 
• Whether there is a need to act at all. 

Interventions should be weighed up against the individual circumstances of the case. 

When should Mental Capacity be assessed? 

Capacity might need to be assessed where a person is unable to make a particular decision at a particular time because their mind or brain is affected by illness or disability.  

Test to assess Mental Capacity 

There is a 2-stage test to assess capacity: 

Stage 1 – Is there an impairment of or disturbance in the functioning of a person’s mind or brain? ​​If so,​ go on to ask the next question: 

​Stage 2 – Is the impairment or disturbance sufficient that the person lacks the capacity to make a particular decision? 

When does a person have Mental Capacity? 

To test to assess means, a person must be able to: 

• Understand the information given 
• Retain the information long enough  
• Weigh the information available 
• Communicate their decision – different ways of communication can be used (verbal & non-verbal) 

The test to assess Mental Capacity includes: 

• Every effort to find ways to communicate with a person before deciding they lack capacity to make a decision, based on their inability to communicate. 
• Involve family, friends, carers, other professionals. 
• The assessment must be made on the balance of probabilities. 
• The assessor should have evidence showing the reasons they came to their conclusion. 

The Purpose of a Mental Capacity Assessment is to:

• Determine the presence of an impairment of, or disturbance in the functioning of the mind or brain (stage 1); and 
• Where an impairment or disturbance exists, determine whether this is preventing them from making the decision (stage 2). 

Who is a Mental Capacity Assessor? 

The person assessing capacity must understand the decision to be made and be able to provide all the relevant information to be able to assess the person’s ability to make the decision for themselves. 

Examples of MCA assessors could be a carer, support worker, dentist, district nurse, doctor, health worker. 

Best Interest Decisions – Section 4 MCA 2005 

Every case and decision is different. The law cannot set out all the factors that will need to be taken into account in working out someone’s best interests.  

Section 4 of the Mental Capacity Act sets out some common factors/a checklist- (HERE) that must always be considered when trying to work out someone’s best interests. 

Independent Mental Capacity Advocates (IMCA) are a legal safeguard. This service helps people who lack capacity to make important decisions about serious medical treatment, or where to live, etc. This is helpful for those who have no family or friends that it would be appropriate to consult about those decisions. In these circumstances an IMCA must normally be instructed and then consulted with.* 

IMCAs work with and support people who lack capacity and represent their views to those who are working out their best interests, (*see full details re this MCA CoP Ch 10 p178 -179).

When is the MCA relevant in education? 

The Principles of the Children and Families Act (2014) define a duty to consider the views, wishes and feelings of the CYP and their parents in circumstances or processes where decisions are made. Examples when decisions or choices are made are: 

• Annual review
• Placements 
• Transition 
• EHC needs assessment 
• Tribunal/appeals 
• Day-to-day decisions at school or college 

What is a Deputyship? 

A Deputy is someone (usually a family member) appointed by the Court of Protection to make decisions on behalf of a person who lacks capacity to make particular decisions for themselves. 

The Court of Protection makes decisions and appoints Deputies to act on behalf of people who are unable to make decisions about their personal health, finance, or welfare. 

See a useful resource HERE

What does ‘Power of Attorney’ mean? 

A Power of Attorney is a legal document that allows someone to make decisions for you, or act on your behalf, if you’re no longer able to or if you no longer want to make your own decisions.

The Mental Capacity Act Deprivation of Liberty Safeguards (MCA DoLS)

The Mental Capacity Act Deprivation of Liberty Safeguards (MCA DoLS) were introduced in 2009 to provide legal protection for vulnerable people who are, or may become, deprived of their liberty in a hospital or care home. They only apply in England and Wales.