Mental Capacity Act 2005

The Mental Capacity Act (MCA) 2005 is the legal framework for acting or making decisions on behalf of individuals who cannot make decisions for themselves.

Mental Capacity is defined as a person’s ability to understand information that is shared with them, to weigh up the available information and then to communicate a decision. There are many instances where a person may not be capable of making a decision, especially in the health and care environment. The MCA ensures that everyone working with and/or caring for an adult follow a number of principles designed to protect the person under care.

The central tenant of the Act is to empower people to make their own decisions wherever possible, including allowing people to plan ahead for a time in the future when they might lack capacity.

Planning ahead

If you want to plan ahead for a time when you may not be able to make decisions for yourself, you can appoint one or more people, known as attorneys, to make decisions on your behalf. For more information about Lasting Power of Attorneys (LPA) visit the Government website.

Thurrock residents can contact the Thurrock Centre for Independent Living (TCIL) for advice about LPA. TCIL may also be able to complete the forms with you, call 01375 389 864 for more information.

There are a number of reasons why a person may lack the capacity to make a decision such as:

A stroke or brain injury
A mental health problem
Dementia
A learning disability
Confusion, drowsiness or unconsciousness because of an illness
Alcohol or substance misuse.

The Five Guiding Principles

The five key principles that are used to determine whether individuals lacks capacity and how those involved with their care should act if they do not have mental capacity:

Principle 1: A presumption of capacity

Every adult has the right to make decisions and must be assumed to have capacity to do so unless proved otherwise. This prevents assumptions being made based on the person’s medical condition or disability.

Principle 2: Individuals being supported to make their own decisions

A person must be given all practicable help to make their own decisions before anyone treats them as lacking capacity. If lack of capacity is established, it is still important that the person is involved as far as possible in making decisions.

Principle 3: Unwise decisions

People have the right to make decisions that others might regard as unwise or eccentric. Decisions seen as unwise may be based on a person’s own values, beliefs and preferences and are not evidence for lack of capacity.

Principle 4: Best interests

Anything done for or on behalf of a person who lacks mental capacity must be done in their best interests.

Principle 5: Less restrictive option

Those making decisions for someone who lacks mental capacity must consider whether it is possible to make a decision that interferes less with a person’s rights or freedom.

When does mental capacity need to be assessed?

Under the MCA, a capacity assessment needs to be carried out before any decision is made on the behalf of another person. The more serious the decision, the more formal the assessment of capacity needs to be.

Lack of capacity may not be a permanent condition and assessments should be made based on a person’s condition at that moment, not on their previous condition. This prevents assumptions being made about their mental capacity.

There are two questions that need to be answered in an assessment:

Is there an impairment of or disturbance in the functioning of a person’s mind or brain? If so,
Is the impairment or disturbance sufficient that the person lacks the capacity to make a particular decision?

If a person is assessed as lacking capacity, then a ‘decision-maker’ must make a decision based on the best interest of the person who needs care. Decisions might be made by a carer responsible for the day-to-day care or a healthcare professional where decisions are about treatment or care arrangements.