Mental Capacity Act 2005
The Mental Capacity Act (MCA) sets out in law how people aged 16 and above, who may lack mental capacity, can be assessed, provided with the care they need and protected.
What is mental capacity?
If you have mental capacity, it means that you are able to make your own decisions. This means you are able to understand and think through information and make a choice based on that information. We all have problems making decisions from time to time, but the MCA is about more than that. It is designed 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 as a result of illness or disability or the effects of drugs or alcohol.
A lack of mental capacity could be due to a stroke or brain injury, a mental health problem, dementia, a learning disability or substance misuse for example. In all these instances a person may lack capacity to make particular decisions at particular times but it does not mean that they lack capacity to make all decisions about their life. Lack of capacity can be temporary.
The Mental Capacity Act is there to support people to make their own decisions, it provides a clear test to assess their capacity, sets out what needs to be considered when decisions need to be made for people who are unable to make them for themselves, called best interests, and also provides legal ways to plan for the future.
Assessing capacity
The MCA provides a test for people to use to make a judgment about whether a person has capacity to make their own decision at the time it needs to be made. To assess whether someone can make the decision, an assessor must look at whether the person:
- Can understand information given to them about the decision
- Retain that information
- Balance or weigh up information about options and then communicate their decision.
No one can be labelled 'incapable' simply because they have a learning disability, brain injury or dementia for example. Who assesses capacity depends on the decision to be made. For day to day decisions a carer/family member could assess capacity. For more complex decisions such as consent to treatment or moving into a care home, a health or social care professional will normally be the person assessing capacity.
Best interests
When it has been established that an individual does not have capacity to make a particular decision, then a decision must be made in the individual's best interests by the decision maker. To do that they must listen to what the person wants, ask the people who know them best and involve any carers.
The decision maker is whoever is making the decision. For medical decisions this is usually a doctor, or for accommodation decisions a social worker. The Mental Capacity Act Code of Practice (PDF) provides a best interest checklist for decision makers to use.
Planning ahead
The Mental Capacity Act introduced a number of ways to help people plan for a time when they may lack capacity to make some decisions. This includes Lasting Powers of Attorney, Advanced Decisions and Advanced Statements.
