Mental Capacity Act 2005

The Mental Capacity Act is a very important piece of legislation that can make a difference to all our lives. It empowers people to make decisions for themselves, whenever possible, by planning for the future, while at the same time protecting people who lack capacity by placing them at the centre of the decision-making process. It applies to all people involved in the care of someone lacking capacity, not just paid carers.

The Act has 5 principles that must be followed:

  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 made, regard must be had to whether the purpose for which it is needed can be effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.

A person may lose capacity for a variety of reasons, these can include:

  • A learning disability
  • Dementia
  • A mental health problem
  • A brain injury or a stroke

It may be a long standing issue or it could be temporary, for example loss of consciousness or having too much to drink.

What happens when a person lacks capacity?

If, following assessment, a person is found to lack capacity to make a certain decision the Act tells us we must act in their best interests. Firstly we must establish if the person has made provision for this eventuality by making a lasting power of attorney or an advance decision; if so this will guide us in our actions. In the absence of such instruction it would be for the person requiring the decision to be made to act in the person’s best interests, for example – if a doctor wishes to prescribe medication to a person who is unable to give consent that doctor would be the decision maker on behalf of the person and must act in the person’s best interests.

To establish what the best interests of a person are it is necessary to talk to people – family, friends etc. – to try to find out what the person’s views are or were. For some important decisions, where there is no-one to consult, it is necessary to appoint an Independent Mental Capacity Advocate

How can I plan for the future?

The Act allows you to make a lasting power of attorney enabling you to appoint someone to make decisions about your finances and property or your health care and welfare should you ever lack the capacity to make these decisions yourself. This involves completing forms and there is a cost to register, more information is available from the Office of the Public Guardian