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The Mental Capacity Act: a guide

What is the Mental Capacity Act 2005?

The Mental Capacity Act makes sure that adults can make decisions for themselves, or that any decisions made for them are in their best interests.

The Mental Capacity Act gives people the power to make decisions for themselves when possible. It protects people who lack capacity by putting them at the centre of the decision-making process. It makes sure they are involved as much as possible in any decisions made on their behalf, and that these decisions are made in their best interests. It also allows people to plan ahead for a time in the future when they might lack the capacity, for any reason, to make decisions for themselves.

We explain what we mean by ‘lack capacity’ further down the page.

The Mental Capacity Act sets out who can make decisions, in what situations, and how it should be done. The Act is designed to protect, and give back power to, vulnerable people who may lack capacity to make certain decisions. This might be due to the way their mind is affected by illness or disability, or by the effects of drugs or alcohol. It is also to support those who currently have capacity and are choosing to plan for their future.

You can find out more in the Mental Capacity Act Code of Practice. The code of practice gives guidance to people who:

  • work with people who can’t make decisions for themselves
  • care for people who can’t make decisions for themselves

What does ‘lacks capacity’ mean?

When we say a person is ‘lacking capacity’, we mean that they:

cannot make a particular decision or take a particular action for themselves at the time the decision or action needs to be taken.

Lacking capacity is decision specific. This means that someone may lack the capacity to make some decisions, but have the capacity to make other decisions. For example, they may be able to make small, everyday decisions like what to wear or what to eat, but not be able to make more complex decisions, like how they are cared for.

The law says that when someone lacks mental capacity, they are unable to do one or more of these things:

  • understand information given to them
  • retain that information long enough to be able to make a decision
  • weigh up the information available to make a decision
  • communicate their decision

We have to decide whether or not someone lacks capacity. We call this assessing capacity, or a ‘capacity assessment’.

The principles of the Mental Capacity Act

By law, we must follow the five principles of the Act:

  1. A person must be assumed to have capacity unless it is established that they lack capacity.
  2. A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
  3. A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
  4. An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.
  5. Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.

What happens when…

we (the council) are assessing your capacity?

When we’re assessing your capacity, we will:

  • explain to you what a capacity assessment is
  • explain to you what we’re assessing your capacity to make a decision about
  • put you at the centre of the assessment process
  • ask you questions about the decision to see if you can understand, think about, remember, and tell us your decision
  • ask you what your thoughts and wishes are
  • ask you who you’d like us to speak to as part of the decision-making process

we (the council) are assessing your family member’s capacity?

When we’re assessing your relative’s capacity, we will:

  • put your relative at the centre of the capacity assessment, because their thoughts and wishes are very important
  • consult with you as part of the assessment process.

We will need you to tell us about your relative’s wishes and feelings, and what is important to them. We will also listen to your views on the decision to be made.