The Mental Capacity Act 2005

The Mental Capacity Act 2005 is the law in England and Wales that protects and supports people who are unable to make some decisions for themselves. When this happens, the person is said to ‘lack capacity’ or ‘lack mental capacity’. The law outlines who can and should make decisions on their behalf. Click on this link to find out more information about What is Mental Capacity?

The Mental Capacity Act was passed by Parliament in 2005 and was implemented in 2007. To help everyone understand what the law means in reality, the Government published some guidance: Mental Capacity Act 2005 Code of Practice.

The Mental Capacity Act is based on five key principles. These are:

• Every adult has the right to make decisions for themselves. It must be assumed that they are able to make their own decisions, unless it has been shown otherwise.
• Every adult has the right to be supported to make their own decisions. All reasonable help and support should be given to assist a person to make their own decisions and communicate those decisions, before it can be assumed that they have lost capacity.
• Every adult has the right to make decisions that may appear to be unwise or strange to others.
• If a person lacks capacity, any decisions taken on their behalf must be in their best interests. (The act provides a checklist that all decision makers must work through when deciding what is in the best interests of the person who lacks capacity)
• If a person lacks capacity, any decisions taken on their behalf must be the option least restrictive to their rights and freedoms.

These principles must underpin all decisions which are made for someone who lacks the capacity to make the decision themselves.

These principles are protected in this Act. This means that any breach of the principles may result in a civil claim for compensation or criminal proceedings, such as wilful neglect or ill-treatment.