Mental Capacity Act
- ravinderkaur1
- Apr 24
- 4 min read
The Mental Capacity Act (MCA) is designed to protect and empower people who may lack the mental capacity to make their own decisions about their care and treatment. It applies to people aged 16 and over.
It covers decisions about day-to-day things like what to wear or what to buy for the weekly shop, or serious life-changing decisions like whether to move into a care home or have major surgery.
Examples of people who may lack capacity include those with:
a severe learning disability
a brain injury
a stroke
unconsciousness caused by an anaesthetic or a sudden accident
But just because a person has one of these health conditions 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).
The MCA says:
assume a person has the capacity to make a decision themselves, unless it's proved otherwise
wherever possible, help people to make their own decisions
do not treat a person as lacking the capacity to make a decision just because they make an unwise decision
if you make a decision for someone who does not have capacity, it must be in their best interests
treatment and care provided to someone who lacks capacity should be the least restrictive of their basic rights and freedoms
The MCA also allows people to express their preferences for care and treatment, and to appoint a trusted person to make a decision on their behalf should they lack capacity in the future.
If there is no trusted person who can support them, people should be provided with an independent advocate. The advocate will support them to make decisions in certain situations, such as serious treatment or where the person might have significant restrictions placed on their freedom and rights in their best interests.
How is mental capacity assessed?
The MCA sets out a 2-stage test of capacity:
Does the impairment mean the person is unable to make a specific decision when they need to? People can lack capacity to make some decisions, but have capacity to make others. Mental capacity can also fluctuate with time – someone may lack capacity at one point in time, but may be able to make the same decision at a later point in time.
Does the person have an impairment of their mind or brain, whether as a result of an illness, or external factors such as alcohol or drug use?
Where appropriate, people should be allowed the time to make a decision themselves.
The MCA says a person is unable to make a decision if they cannot do 1 or more of these things:
understand the information relevant to the decision
retain that information for long enough to make the decision
use or weigh up that information as part of the process of making the decision
communicate their decision in any way
Helping people make their own decisions
Before deciding a person lacks capacity, it's important to take steps to enable them to try to make the decision themselves.
For example:
does the person have all the relevant information they need?
have they been given information on any alternatives?
could information be explained or presented in a way that's easier for them to understand (for example, by using simple language or visual aids)?
have different methods of communication been explored, such as non-verbal communication?
could anyone else help with communication, such as a family member, carer or advocate?
are there particular times of day when the person's understanding is better?
are there particular locations where the person may feel more at ease?
could the decision be delayed until they might be better able to make the decision?
Is the decision in their best interests?
If someone lacks the capacity to make a decision and the decision needs to be made for them, the MCA states the decision must be made in their best interests.
The MCA sets out a checklist to consider when deciding what's in a person's best interests.
It says you should:
encourage participation – do whatever's possible to permit or encourage the person to take part
identify all relevant circumstances – try to identify the things the person lacking capacity would take into account if they were making the decision themselves
find out the person's views – including their past and present wishes and feelings, and any beliefs or values
avoid discrimination – do not make assumptions on the basis of age, appearance, condition or behaviour
assess whether the person might regain capacity – if they might, could the decision be postponed?
It's vital to consult with others for their views about the person's best interests.
In particular, try to consult:
anyone previously named by the person
anyone engaged in caring for them
close relatives and friends
any attorney appointed under a Lasting Power of Attorney or Enduring Power of Attorney
any deputy appointed by the Court of Protection to make decisions for the person
Reference -Mental Capacity Act - Social care and support guide - NHS
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