The Mental Capacity Act (MCA) 2005 is operational from October 1st 2007 in England and Wales. The Act defines 'lacks capacity' as a person who lacks capacity to make a particular decision or take a particular action for themselves at the time the decision or action needs to be taken. This reflects the fact that people may lack capacity to make some decisions for themselves, but will have capacity to make other decisions. For example, they may have capacity to make small decisions about everyday issues such as what to wear or what to eat, but lack capacity to make more complex decisions about financial matters.
It also reflects the fact that a person who lacks capacity to make a decision for themselves at a certain time may be able to make that decision at a later date. This may be because they have an illness or condition that means their capacity changes. Alternatively, it may be because at the time the decision needs to be made, they are unconscious or barely conscious. This may be due to an accident, being under anesthetic or the influence of alcohol or drugs.
The Act also recognizes that while some individuals may always lack the capacity to make some types of decisions, for example due to a condition or severe learning disability that has affected them from birth, others may learn new skills that enable them to gain capacity and make decisions for themselves.
For researchers the Act means that they should assume that a person has capacity, unless there is proof that they lack capacity to make a specific decision. The person must also receive support to try to help them make their own decision. The person whose capacity is in question has the right to make decisions that others might not agree with, and they have the right not to take part in research.
A related Code of Practice to the MCA provides guidance to anyone who is working with and/or caring for adults who may lack capacity to make particular decisions. It describes their responsibilities when acting or making decisions on behalf of individuals who lack the capacity to act or make these decisions for themselves. In particular, the Code of Practice focuses on those who have a duty of care to someone who lacks the capacity to agree to the care that is being provided.
Links to the Act, Code of Practice and guidance are provided below. For specific information on the research implications read chapter 11 of the code of practice.
MCA Code of Practice
MCA ACT 2005
NHS National Research Ethics Service Guidance on adults unable to consent for themselves