The Mental Capacity Act 2005 sets out in law how people (over the age of 16) who cannot make decisions for themselves – because of illness, injury or a lifelong mental impairment such as a learning disability or other neurological condition for example – can be protected and provided with the care and support they need. Such a person ‘lacks mental capacity’ or ‘lack capacity’. Click on the link to read more information about the Mental Capacity Act 2005.
If you have mental capacity, it means that you can make your own decisions. You can understand and think through information that is given to you, and make your own decisions and choices based on that information.
We can all have problems making decisions from time to time, but the Mental Capacity Act was brought in to cover situations where someone is unable to make a particular decision at a particular time because of the way their mind or brain works. This could be because of a stroke, a brain injury, a mental health problem, dementia, a learning disability or because someone is affected by using drugs or alcohol for example.
Sometimes a person ‘lacks capacity’ to make some decisions (such as where to save their money), but can make other decisions (such as what to eat or what to wear).
Sometimes people lack capacity when they are ill, but are able to make all decisions when they get better. Those people lack capacity on a temporary basis. For others though, lacking capacity will be permanent.
The Mental Capacity Act supports people who may lack capacity to make their own decisions. It sets out a method of being able to decide whether someone lacks mental capacity (an assessment). It also provides information about what things should be considered when decisions need to be made for people who lack capacity. It also puts in place different ways of protecting such people, and planning for the future.
The Mental Capacity Act provides a test for people to help them make a judgment about whether someone has the mental capacity to make their own decisions. The person who carries out the assessment (the assessor) must look at whether the individual can:
Someone cannot be labelled ‘incapable’ simply because they have a learning disability or a brain injury, for example. Who the person is who carries out the assessment depends on what the decision is that has to be made.
For day to day decisions, a carer or a family member can assess a person’s capacity. For more complicated decisions such as whether the person agrees to medical treatment (called ‘consent’) or where they should live, it may be a health or social care professional who must assess capacity.
When it has been decided that a person does not have capacity to make a particular decision, a decision must be made in their ‘best interests’ by someone who is known as the ‘decision maker’ (this is the person who is proposing to take the step in question on the basis that it is said to be in the best interests of the person who lacks capacity).
The decision maker must listen to what the person wants, ask the people who know them best and who may be able to say what their wishes would have been if they had been able to make the decision themselves.
For medical decisions, the decision maker is usually a doctor. For decisions about where someone should live, the decision maker is usually a social worker.
The Mental Capacity Act Code of Practice provides a best interests checklist for decision makers to use to help them make decisions on the person’s behalf.
The Mental Capacity Act introduced a number of different ways to help people plan for a time when they may lack capacity to make some or all of their own decisions. Click on the links below to see more information about these options:
The Mental Capacity Act also introduced a way to help people who have already not got mental capacity. They may have lost capacity as a result of an accident or illness for example, or they may have never had capacity at any time in their life, due to being born with a particular disability or as a result of serious illness in childhood for instance.Click on this link to find out more about Deputies (appointed by the Court of Protection).
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