Mental Capacity Policy | The Neurodiversity Service

1. Policy Statement

The Neurodiversity Service is committed to applying the principles of the Mental Capacity Act 2005 (MCA) in all aspects of our work. Capacity is central to autonomy and decision-making, and our approach is to support individuals to make their own decisions wherever possible. This policy applies to individuals aged 16 and over and reflects the MCA, its Code of Practice, and related legislation including the Care Act 2014.

2. Five Statutory Principles

Principle 1: Presumption of Capacity

Every adult has the right to make their own decisions and must be assumed to have capacity unless proven otherwise through a proper assessment.

Principle 2: Support to Make Decisions

Individuals must be given all appropriate help and support to make their own decisions before concluding they lack capacity.

Principle 3: Unwise Decisions

People have the right to make decisions that others might consider unwise or eccentric. Making an unwise decision does not mean a person lacks capacity.

Principle 4: Best Interests

Any act done for or decision made on behalf of a person who lacks capacity must be in their best interests.

Principle 5: Least Restrictive Option

Before making a decision or acting on behalf of someone who lacks capacity, consideration must be given to whether the outcome can be achieved in a less restrictive way.

3. Assessing Mental Capacity

Capacity is assessed using the two-stage test:

Stage 1: Is there an impairment or disturbance?

Is there an impairment of, or disturbance in the functioning of, the person's mind or brain? This could be due to learning disability, dementia, mental health conditions, brain injury, or other causes.

Stage 2: Does the impairment affect decision-making?

Does the impairment or disturbance mean the person is unable to make a specific decision at the time it needs to be made? The person must be able to:

Understand the information relevant to the decision
Retain that information long enough to make the decision
Use or weigh that information as part of the decision-making process
Communicate their decision by any means

Key points: Capacity is decision-specific and time-specific. A person may have capacity for some decisions but not others, and capacity can fluctuate over time.

4. Supporting Decision-Making

Before assessing capacity, we take all practicable steps to support the person, including:

Providing information in accessible formats (easy read, visual aids, etc.)
Using clear, simple language without jargon
Allowing adequate time for understanding and processing
Choosing the best time and environment for discussion
Involving family members or advocates if the person wishes
Using communication aids or interpreters if needed
Breaking down complex information into manageable parts

5. Best Interests Decision-Making

When making a best interests decision, we must:

Consider all relevant circumstances
Not make assumptions based on age, appearance, condition, or behaviour
Consider whether the person might regain capacity
Encourage participation in the decision as much as possible
Consider the person's past and present wishes, feelings, beliefs, and values
Consult with family members, carers, and others interested in the person's welfare
Consider any advance decisions or statements
Avoid restricting the person's rights unnecessarily

6. Documentation

All capacity assessments and best interests decisions are thoroughly documented, including:

The specific decision to be made
Date, time, and circumstances of the assessment
Steps taken to support decision-making
Evidence of the person's understanding (or lack thereof) for each element
Reasons for the capacity conclusion
Who was consulted in best interests decisions
The decision made and rationale

7. Lasting Powers of Attorney and Advance Decisions

We recognize and respect:

Lasting Power of Attorney (LPA): Attorneys appointed to make decisions on behalf of someone who lacks capacity
Advance Decisions to Refuse Treatment: Decisions made when a person has capacity about refusing specific treatments in the future
Court Appointed Deputies: Individuals appointed by the Court of Protection to make decisions

We verify the validity and scope of any LPA or advance decision before acting upon it.

8. Independent Mental Capacity Advocacy (IMCA)

In certain circumstances, individuals are entitled to an Independent Mental Capacity Advocate (IMCA) to support them and represent their interests. Where required, we will support appropriate referral or signposting for Independent Mental Capacity Advocacy (IMCA) involvement.

9. Deprivation of Liberty

We recognize that restricting a person's liberty must be proportionate and necessary. Any arrangements that may amount to a deprivation of liberty are identified and appropriate safeguards are put in place in accordance with the Liberty Protection Safeguards framework.

10. Training and Competence

All clinical staff receive mandatory training on the Mental Capacity Act and capacity assessment. Training is refreshed regularly and competence is assessed through supervision and practice review.

11. Policy Review and Monitoring

This policy is reviewed annually and updated in line with legislative changes and case law. Compliance is monitored through clinical audit, case review, and feedback from individuals and families.

Mental Capacity Act Policy