3. The Five Principles of the Mental Capacity Act

The MCA has five key principles which emphasise its fundamental concepts and core values. These must be borne in mind when working with, or providing care or treatment for, people who lack capacity.

The five principles are:

1. 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 it must not be assumed someone cannot make a decision for themselves just because they have a particular medical condition or disability, or because they lack capacity in other areas.
2. People must be supported as much as possible to make their own decisions before anyone concludes that they cannot do so. This means that every effort should be made to encourage and support the person to make the decision for himself/herself. If a lack of capacity is established, it is still important that the person is involved as far as possible in making decisions.
3. People have the right to make what others might regard as unwise or eccentric decisions. Everyone has their own values, beliefs and preferences which may not be the same as those of other people. People cannot be treated as lacking capacity for that reason.
4. Anything done for or on behalf of a person who lacks mental capacity must be done in their best interests.
5. Anything done for, or on behalf of, people without capacity should be the least restrictive of their basic rights and freedoms. This means that when anything is done to, or for, a person who lacks capacity the option that is in their best interests and which interferes the least with their rights and freedom of action must be chosen.

When a person in the care of professional, or paid staff, needs to make a decision, staff must start from the assumption that the person has capacity to make the decision in question (Principle 1). Every effort should be made to encourage and support the person to make the decision themselves (Principle 2) and there a number of factors to assist in the decision making.

These could include:

• Does the person have all the relevant information needed to make the decision? If there is a choice, has information been given on the alternatives?
• Could the information be explained or presented in a way that is easier for the person to understand? Help should be given to communicate information wherever necessary. For example, a person with a learning disability might find it easier to communicate using symbols, pictures, photographs, videos, tapes, Makaton or sign language.
• Are there particular times of the day when a person’s understanding is better or is there a particular place where they feel more at ease and able to make a decision? For example, if a person becomes drowsy soon after they have taken their medication this would not be a good time for them to make a decision.
• Can anyone else help or support the person to understand information or make a choice? For example, a relative, friend or an advocate.

See Michael’s Case Study.

It is important to remember that if a person makes a decision which may seem eccentric or unwise, this does not necessarily mean that the person lacks capacity to make the decision (Principle 3).

See Margie’s Case Study.

When there is reason to believe that a person lacks capacity to make a decision there is an expectation that the following will be considered:

• Has everything been done to help and support the person to make the decision?
• Does the decision need to be made without delay?
• If not, is it possible to wait until the person does have the capacity to make the decision for himself or herself? For example, a person may be drowsy or disorientated because of the medication they are taking.
• If the person’s ability to make a decision still seems questionable then the next phase of assessing capacity should be undertaken (see Assessing Mental Capacity.