The Mental Capacity Act 2005
The Mental Capacity Act 2005 (“the 2005 Act”) sets out the legal framework of how to act and make decisions on behalf of adults who lack capacity to make specific decisions for themselves. It sets out core principles and methods for making decisions and carrying out actions in relation to personal welfare, healthcare and financial matters affecting adults (aged 16 or over) who may lack capacity to make specific decisions about these issues for themselves.
The Act has five key principles:
- First, a person must be assumed to have capacity to take a decision unless it is established that they do not.
- Second, people must not be treated as lacking capacity to take a decision unless they have first been given practical support to take the decision themselves without success.
- Third, a person must not be treated as lacking capacity just because they make an unwise decision.
- Fourth, anything done, or any decisions taken, for a person who lacks capacity must be in their best interests.
- Fifth, thought must always be given to whether there is a less restrictive way of doing what needs to be done.
Lack of Mental Capacity
Lacking mental capacity means being unable to make a decision because of an impairment of or disturbance in the functioning of, the mind or brain.
This could be because of a disability, an illness, an injury or even the temporary effects of medication, drugs or alcohol. Examples of people who lack capacity may include people with the following:
- dementia
- a learning disability
- a brain injury
- a mental health condition
- a stroke
- unconsciousness caused by an anaesthetic or sudden accident
However, just because a person has one of these conditions it does not necessarily mean they lack the capacity to make a specific decision.
Someone can lack capacity to make some decisions (for example, to decide on complex financial issues) but still have the capacity to make other decisions (for example, to decide what items to buy at the local shop).
Best Interests
When a decision is made on behalf of someone who lacks capacity it must be in the person’s best interests. Unfortunately there is no definition of “best interests” contained within the 2005 Act itself. The following are factors that should be considered when deciding what is in a person’s best interests,
- Encourage participation of the person in making the decision
- Identify all relevant circumstances and factors that the person would take into account if they were making the decision themselves
- Investigate the person’s views including past and present, beliefs and values
- Attempt to avoid discrimination not making assumptions based on the person’s age, appearance, condition or behaviour
- Consider whether the person might regain capacity and whether the decision can wait until then
- Avoid making assumptions regarding quality of life (decisions concerning life sustaining treatment)
- Avoid restricting the person’s rights?
- Where practicable and appropriate to do so, have others been consulted for their views about interests? Includes: anyone previously named, current carer, close relative, friend, Lasting Power Attorney, Deputy appointed by the COP)
- Have the views of the Independent Mental Capacity Advocate been considered?
Not all the above may be relevant to all types of decisions or actions and in many cases other factors will have to be considered as well. For example, if the decision is urgent, there may not be time to examine all possible factors, but the decision must still be made in the best interests of the person.
Who Is the Decision Maker?
Who Is the Decision Maker? Many different people may be required to make decisions or act on behalf of someone who lacks capacity to make decisions for themselves.
For most day-to-day actions or decisions, the decision-maker will be the carer most directly involved with the person at the time.
Where the decision involves the provision of medical treatment, the doctor or other member of healthcare staff responsible for carrying out the particular treatment or procedure is the decision-maker.
Where nursing or paid care is provided, the nurse or paid carer will be the decision-maker.
If a Lasting Power of Attorney (or Enduring Power of Attorney) has been made and registered, or a deputy has been appointed under a court order, the attorney or deputy will be the decision-maker, for decisions within the scope of their authority.
There are also times when a joint decision might be made by a number of people. For example, when a care plan for a person to make relevant decisions is being put together, different healthcare or social care staff might be involved in making decisions or recommendations about the person’s care package. Sometimes these decisions will be made by a team of healthcare or social care staff as a whole. At other times, the decision will be made by a specific individual within the team. A different member of the team may then implement that decision, based on what the team has worked out to be in the person’s best interests.
Learn more
Find out more about the Mental Capacity Act on the NHS Choices website.
