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Does the Mental Capacity Act infringe on freedom?

As some of our more avid readers (I genuinely hope that there are a few of you out there!) may remember, a few weeks ago we had an intern in the office, Natasha. The below is in fact the first blog that she wrote for us, lets see if you can tell what career she will end up in. The topic she chose – Does the Mental Capacity Act infringe on the idea of freedom?

The Mental Capacity Act 2005 exists to protect individuals who are unable to make their own decisions about care and treatment due to their lack of mental capacity. A person who lacks mental capacity is unable to make decisions, and the general conditions individuals tend to have are dementia, severe learning disabilities, brain injuries, mental health conditions, victims of stroke.

Necessary lack of mental capacity

According to the Act itself, a person must be assumed to have the necessary capacity unless it has been established that he/she lacks capacity. The person may be making a few unwise decisions, but since that is a part of human nature, they should not be treated as lacking mental capacity. There may also be situations where individuals are unable to resolve on complex issues (finance), but are fully capable on making other decisions, (weekly shopping purchases).

Issue of freedom and ‘best interests’

Mental Capacity ActThe issue that stands is whether this Act interferes with the individuals’ right to freedom. The standard rule within the Act is that any action completed must be done in the best interests of the person unable to come to decisions on their own. There is a checklist in place when determining an individual’s best interests, which include encouraging participation, avoiding discrimination (making decisions based on their age, sex or appearance), talking them through all the options available and most importantly consulting with others. The latter being the most important where family members and professionals can be of help in understanding that individual’s state of mind and mental capacity.

Under the umbrella term of ‘best interest’ comes the phrase ‘least restrictive alternative’, meaning to find a way of taking a decision whilst allowing more freedom for those who lack capacity. However, there are circumstances in which decisions have to be taken keeping in mind the best interests of an individual but which may not be the least restrictive alternative, and may actually cause some interference with the person’s basic rights.

Interference with individual liberty and ‘practicable’ steps

Another essential point to be made is that interference with a person’s liberty in terms of someone’s lack of capacity can only be taken after all ‘practicable’ steps have been taken without success. These include providing all relevant information, presenting the information in easier formats (be it sign language or visual aids), attempting different forms of communication, asking a family member to help with explanations, and learning what time of day the individual’s understanding is more active. Respecting personal welfare is another step taken to ensure freedom and liberty to some extent where individuals can express preferences.

The Mental Capacity Act 2005 does in fact protect citizens from complete loss of liberty (unless in dire situations), whilst offering protection to those CareGivers and others who may have to make certain decisions or provide care that is restrictive.

Thanks Natasha! (for those of you who are still trying to work out what career Natasha will end up in – she’s currently studying towards a Law Degree – so hopefully that helps!). 

I think that the above gives a great summary of the MCA 2005, something that is being talked about more and more in our industry. Its also great to hear the opinions of someone from outside the industry. One of the real gems from what Natasha has written is around the fact that everyone is entitled to make (what we may think is) an unwise decision. An unwise decision doesn’t mean that someone is lacking mental capacity.

As always, if you feel as though your loved one could benefit from our award winning services in the home care industry, please get in touch by email or phone – 01329 233755 



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