Mental Capacity Act and communication

Also called MCA, MCA 2005, Mental Capacity Act 2005

Before anyone can say a person lacks capacity, they must have tried every practicable way of helping that person decide. Communication is where most fail.

What it is

The Mental Capacity Act 2005 is the law in England and Wales about decisions made by, and for, people aged 16 and over who may not be able to make a particular decision themselves. Scotland's equivalent is the Adults with Incapacity (Scotland) Act 2000; Northern Ireland has the Mental Capacity Act (Northern Ireland) 2016.

Its five principles are in section 1. The two that matter most for communication are that a person is assumed to have capacity until it is shown otherwise, and that nobody is to be treated as unable to decide unless all practicable steps to help them have been taken without success. A person who cannot speak has not failed a capacity test. A person who was not given a way to answer has not been tested at all.

Who it can help

Anyone whose way of communicating means a professional might wrongly assume they cannot decide: people who use AAC, people with aphasia after a stroke, people with a learning disability, people with dementia, autistic people who shut down under pressure.

It applies decision by decision and time by time. A person may lack capacity to decide about surgery this morning and have full capacity to decide what to eat, and may recover capacity for the surgery decision by the afternoon.

How it works

Capacity is assessed against a four-part functional test in section 3: can the person understand the relevant information, retain it long enough, use or weigh it, and communicate the decision by any means. The words "by any means" are in the Act. Blinking, pointing, signing, a symbol board, a talking board, a yes and no system: all of them count.

Section 3(2) goes further and says a person is not to be regarded as unable to understand if they could understand an explanation given in a way appropriate to their circumstances, using simple language, visual aids or any other means. So the assessor has to change how they explain, not just how they listen. See supported decision-making for what that looks like in practice.

Only if capacity is genuinely absent after all that does the best interests process begin.

Getting started

If someone you support is about to have a capacity assessment, ask three questions of the assessor in advance. What time of day is best for this person? What communication method will you use, and who is bringing it? Who will be there who knows how this person says yes and no? If the assessor has not thought about any of these, the assessment is not ready to happen.

Bring the person's communication passport and their usual aid. Ask for the key information to be put in easy read or pictures before the meeting so the person can look at it in their own time. Ask for the decision to be broken into smaller ones. And ask for the assessment to be written up showing what steps were taken to support the person, because the Code of Practice expects that record and its absence is a ground to challenge.

The Talk board's yes and no, feelings and needs sets give a person a consistent way to answer, and consistent answers are what an assessor is looking for.

Where to get help

The Mental Capacity Act Code of Practice is long but chapters 3 and 4 are readable and are what a challenge is built on. SCIE hosts the best free MCA training resources. Mencap and Alzheimer's Society both have plain guides.

If the person has nobody independent to speak for them and the decision is serious, an IMCA must be appointed. Our health A-Z has a fuller page on mental capacity.