Mental Capacity Act

What is Mental Capacity?

The Mental Capacity Act 2005 provides a legal framework to empower and protect vulnerable people who are not able to make their own decisions.

The act is there to protect you if you cannot make a decision at a particular time due to your mind and brain being affected.

It makes it clear who can take decisions and in which situations and how they should go about this. It enables people to plan ahead for a time when they themselves may lose mental capacity.

If someone lacks capacity, then the act allows people to lawfully provide care and treatment as long as it is in their best interests.

The act has five key principles –

a presumption of capacity - every adult has the right to make his or her own decisions and must be assumed to have capacity to do so unless it is proved otherwise
the right for individuals to be supported to make their own decisions - people must be given all appropriate help before anyone concludes that they cannot make their own decisions
that individuals must retain the right to make what might be seen as eccentric or unwise decisions
Best Interests - anything done for or on behalf of people without capacity must be in their best interests
least restrictive intervention – before a decision is made on someone’s behalf, consideration has to be made on how the outcome could be achieved in an alternative way which does not interfere with their basic rights and freedom

Download an easy read version of Mental Capacity Act 2005 here (PDF, 3mb)

The test of whether you are able to make a decision for yourself includes assessing whether you can understand –

in general terms the decision that needs to be made and why it needs to be made
the consequences of making or not making the decision
weigh up information that is relevant to the decision

The test often involves support from family, friends and care providers. If you have no one to support or represent you, you may be given the help of an independent advocate.

More on speaking on someone else’s behalf

Just because you cannot make a particular decision does not mean that you cannot make any decisions at all.

If someone cannot make a decision at one time, that does not mean they are incapable of making a decision at another time.

Download a copy of the Mental capacity act code of practice (PDF, 1mb)

One of the key principals of the Mental Capacity act is that any decision made is done in the person’s ‘best interests’

Making a ‘best interests’ decision can difficult and as such, the Mental Capacity Act 2005 Code of Practice has laid out some guiding principles that you should follow if you are responsible for making a best interest decision for someone who lacks capacity.

Encourage participation

Do whatever is possible to permit and encourage the person who lacks capacity to improve their ability to take part in making the decision.

Identify all relevant circumstances

Try to identify all the things the person who lacks capacity would take into account if they had capacity and were making the decision.

Find out the persons views

Try to find out what the persons views are by taking into account –

The person’s past and present wishes and feelings – this may have been expressed verbally or in writing or through behaviours and habits prior to the person lacking capacity
The person’s beliefs either religious, cultural moral or political
Any other decision the person may have taken into account prior to losing capacity

Avoid discrimination

Not make any assumptions based about someone’s best interests simply on the basis of the person’s age, appearance, condition, or behaviour.

Assess whether the person might regain capacity

Some people may regain capacity such as someone who has undergone medical treatment; if so consider whether the decision can wait until then.

If the decision concerns life sustaining treatment

The person responsible for making the best interests decision should not be motivated by the desire to bring about the person’s death and should not make assumptions about the person’s quality of life.

Consult others

Whenever possible, the person responsible for making the best interest decision should consult with as many people involved with the person as they may have information on the person’s wishes and feelings. People you should consult can be -

Anyone who has previously named by the person as someone to be consulted in either the decision in question or on similar issues
Anyone who is caring for the person
Any person appointed under the Lasting Power of Attorney or Enduring Power of Attorney made by the person
Any deputy appointed by the Court of Protection to make decision for the person.

Avoid restricting the person’s rights

Investigate whether there are other options that are less restrictive to the person’s rights

Take all these factors into account

Weigh up all these factors to help you make the ‘best interest’ decision on behalf of the person.

Under the Mental Capacity Act 2005, many people may be required to make a decision on or act on the behalf of someone who lacks capacity.

Some examples include –

For day to day activities the primary carer will be responsible for making ‘best interests’ decisions
If the decision involves the provision of medical treatment, the doctor and other healthcare staff will be responsible decision maker
If nursing or paid care is involved, then the nursing or paid carer will be the decision maker
If a Lasting power of Attorney has been registered or a deputy has been appointed, then the attorney or deputy will be the decision maker within the scope of their authority.

There are also times that when a joint decision might be required by a number of people. For example of when a care plan needs to be put together.

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Last updated: 2018/04/23