This page contains details on the Mental Capacity Act.

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The MCA is law which support people in their decision making.  Not all people can make all of their own decision all of the time.  When the Mental Capacity Act 2005 came into force, it did so to boost protection and empowerment for individuals who lack the capacity to make decisions about their own care and treatment and to help others plan ahead for when they may find themselves in a similar position.

See the flow chart here.

Principle 1: 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. This means that you cannot assume that someone cannot make a decision for themselves just because they have a particular medical condition or disability.

Principle 2: Individuals being supported to make their own decisions

A person must be given all practicable help before anyone treats them as not being able to make their own decisions. This means you should make every effort to encourage and support people to make the decision for themselves. If lack of capacity is established, it is still important that you involve the person as far as possible in making decisions.

Principle 3: Unwise decisions

People have the right to make what others might regard as an unwise or eccentric decision. Everyone has their own values, beliefs and preferences which may not be the same as those of other people. You cannot treat them as lacking capacity for that reason.

Principle 4: Best interests

If a person has been assessed as lacking capacity then any action taken, or any decision made for, or on behalf of that person, must be made in his or her best interests.

Principle  5: Less restrictive option

Someone making a decision or acting on behalf of a person who lacks capacity must consider whether it is possible to decide or act in a way that would interfere less with the person’s rights and freedoms of action, or whether there is a need to decide or act at all. In essence, any intervention should be proportional to the particular circumstances of the case.

The MCA looks at decisions which need to be taken at that particular time.  It is common for people to have capacity to make some decision, but not others.  There are very few people who are not able to make any decisions for themselves. It is important not to assume a person lacks capacity just because of their illness or disability. Due to illness or disability a person’s ability to make a decision may change over time.

The second principle is very important.  This is there to assist the person by giving them the best possible chance to make their own decision.

Some people, probably most of us at some time, make unwise choices.  Making an unwise choice is not the same as someone lacking capacity.

Principles 4 & 5 are the process to be followed where a person does not have capacity for the decision. A best interest decision must be taken in the persons best interests and finally it must be the least restrictive decision of those available.

Firstly, you need to know if a person has an impairment or disorder of the mind or brain.  Examples will include dementias, learning disability, delirium or intoxication.  Just because of an impairment/disturbance, this does not mean that the person lacks capacity.  They may or may not, but this needs to be assessed.

The second step is to understand if the impairment/disturbance is the reason why the person cannot make the decision for themselves. The MCA does this by getting the assessor to ask a series of questions:

Does the person have the ability to:

  • Understand the information?
  • Retain information related to the decision?
  • Weigh up or use the information while considering the decision?
  • Communicate the decision by any means?

This is not always as easy as it sounds.  If you are presenting information to a person think about the best way that they will be able to take it in.  Think about the content as well, what is relevant for them?

You can assess if a person can understand information b y asking them to repeat some key information from earlier in the conversation or by asking for the information in a slightly different way.

The person will need to retain this information for long enough to make the decision. Think about decisions for a meal choice, this would only have to be retained for a short amount of time, until the meal.  For decisions around care or serious medical treatment, this is a more complex decision and information may need to be held for a longer period of time.

When you are assessing if a person can weigh up information, you have to be able to explain what options are available and think about how they can look at the pros ad cons and come to their decision.  If they cannot, they will lack capacity for this decision.

To demonstrate capacity the person must be able to communicate their decision which means to be able to demonstrate their choice, it does not have to be verbal.

If a person is found to lack capacity for a particular decision, there is a decision which now has to be made in their best interests.  It is very important to understand that this decision is not what you think should happen, but a decision based on a number of different factors starting with what would the person want if they had capacity.  This will not always be clear but in many cases the person, even lacking capacity, can still have a view they will share.  It maybe that family/carers know what the person would want because they have shared that information in the past. Before a best interest decision can be taken, you must consider the best interests checklist:

Involve the person in the decision as much as possible – do whatever is possible to permit and encourage the person to take part, or to improve their ability to take part, in making the decision.

You are probably thinking “But who makes the decision?”  This depends on what the decision is, for example a decision on a medical operation will have to be taken by the responsible medical professional; however a decision on where to go on a particular day will be one for the carer to take.  There are many decisions and as many decision makers.  In practice most day to day decision will be taken by family or carers and they will have the best understating of what a person want, likes or dislikes.

The Mental Capacity Act 2005 doesn’t just help people who lack capacity, it also helps you.  By following the principles and process you can support people to have better lives.

Page last updated: 14 August 2024