Mental Capacity Act

We have a responsibility to meet the needs of people, aged 16 years and over, who need assistance with making decisions, and those who may not have the ability to make important decisions regarding their future social care, nursing, medical or safeguarding needs.

The main purpose of the Mental Capacity Act is to provide a legal framework for acting and making decisions on behalf of adults who lack the capacity to make particular decisions for themselves.

The 5 principles are outlined in section 1 of the Act. These are designed to protect people who lack capacity to make particular decisions, but also to maximise their ability to make decisions, or to participate in decision making, as far as they are able to do so.

These are the 5 key principles:

• a presumption of capacity must be assumed
• individuals are to be supported to make decisions
• individuals have a right to make what may seem unwise decisions
• all decisions must be based on protecting an individual's best interests
• decisions must be the least restrictive to an individual's rights and freedoms

It is important to know whether someone has mental capacity to make a decision. Whether they have or not will affect the option for dealing with their affairs, such as whether it is still possible to make a lasting power of attorney (LPA).

If someone can make a decision for themselves, they are said to have the mental capacity to make that decision. Being unwell or having a mental illness does not mean you lack mental capacity. Most people with a mental illness do not lack capacity, however if a person is not able to make a decision, because of some form of disability or mental illness, they are said to lack the mental capacity to make that decision.

The disability may be either temporary or permanent and could be caused by:

• dementia
• brain injury
• a stroke
• alcohol or drug misuse
• the side-effect of medical treatment
• any other illness or disability

A person must be assumed to have capacity unless it is established they do not.

The Court of Protection oversees the operation of the Mental Capacity Act and deals with all issues, including financial and serious healthcare matters, concerning people who lack the mental capacity to make their own decisions. It tries to resolve disputes when the person's carer, healthcare worker or social worker disagree about what's in the person's best interests, or when the views of the attorneys in relation to property and welfare conflict.

The role of the Office of the Public Guardian is to protect anyone who lacks mental capacity to make decisions for themselves. It registers lasting powers of attorney and enduring powers of attorney and supervises court-appointed deputies. It provides evidence to the Court of Protection and guidance to the public.

The public guardian works with a range of agencies, such as the police and adult care services to investigate concerns.

The independent mental capacity advocate (IMCA) helps people who:

• do not have mental capacity
• have not given powers of attorney to anyone
• do not have a court-appointed deputy, and
• have no friends or family to speak on their behalf

They will help the person who lacks capacity to make decisions about serious medical treatment and long-term accommodation in a hospital or care home.

The Social Care Institute for Excellence (SCIE) has a summary that presents an overview of the Mental Capacity Act (MCA) 2005, which is important to health and social care practice.

Read more about the Mental Capacity Act

Guidance to assessing mental capacity and making best interests decisions

The Mental Capacity Act (MCA) sub group for the Derby and Derbyshire Safeguarding Adults Boards would like to extend their thanks and gratitude to Waltham Forest Safeguarding Adults Board for their permission to use the guidance to assessing mental capacity and making best interests decisions document that was produced by their MCA sub group in 2021. This guidance, attached to this page, aims to “demystify the Mental Capacity Act and make key aspects workable in practice.”

The A to Z of the Mental Capacity Act

The A-Z of the Mental Capacity Act aims to bring together a selection of references to the Mental Capacity Act and associated guidance, legislation and case law.

Law Society guidance about deprivation of liberty

The Law Society’s guidance about understanding when someone is deprived of their liberty draws together the assistance that can be found in the case law and from the practical experience of the authors who, in different contexts, advise upon and act in cases involving questions of deprivation of liberty. It includes an overview of the legal framework, including the special considerations relating to those under 18 years old. The guidance applies that framework to different settings:

• hospitals
• psychiatric care
• care homes
• supported living/shared lives/extra care
• at home
• palliative care and hospices

For each setting, a list of potentially ‘liberty-restricting’ factors are given that may indicate that a deprivation of liberty is occurring. Scenarios are also given, which illustrate:

• a deprivation of liberty
• a potential deprivation of liberty depending on the circumstances
• a situation unlikely to amount to a deprivation of liberty

Each chapter concludes with a list of questions that professionals can ask themselves whenever they are confronted with a situation which may amount to a deprivation of liberty.

It’s Your Decisions Mental Capacity Act film

Your Somerset has produced a film about mental capacity and the Mental Capacity Act called It’s Your Decisions: MCA.

MCA myths and facts

The MCA is sometimes misunderstood. We have a list of the 8 most common myths that includes a factual explanation for each of them.

Myth 1: If I have a concern about a decision someone is making, it is up to them to prove to me that they have the capacity to make it.

Fact 1: It is the other way around. The presumption that people have capacity is fundamental to the MCA. The person does not have to prove anything. The burden to prove a lack of capacity (to make a specific decision) always lies with the person who thinks it may be necessary to make a decision on their behalf.

Myth 2: If someone is making an unwise decision, you must let them do it.

Fact 2: Whilst the presumption of capacity is a foundational principle, you should not hide behind it to avoid responsibility to assess capacity. If you reasonably suspect a person may lack capacity to take a relevant decision, especially if the consequence of what they are wanting to do is likely to lead to serious consequences for them, it would be inadequate for you simply to record (for instance) “as there is a presumption of capacity, the decision was the person’s choice.”

Myth 3: If a person has been assessed as lacking capacity to make a decision then this applies to all future decisions too.

Fact 3: Mental capacity is time and decision specific. For example, a person may recover from a head injury. Or, with focused support, a person with a learning disability may increasingly gain capacity, and thus the freedom to spend increasing quantities of their own money.

Myth 4: The person needs to have a detailed understanding of every aspect of the decision they are making in order to demonstrate that they have capacity.

Fact 4: This is not necessary. The person only needs to understand the key information, often called the ‘salient factors’ relevant to the decision.

Myth 5: A person with dementia will not have capacity to make any decisions.

Fact 5: You must not assume someone lacks capacity because they have a particular condition.

Myth 6: It is not appropriate to help people to understand their options when assessing capacity. Otherwise, you would be helping them to cheat.

Fact 6: Principle 2 of the MCA requires you to take all ‘practicable steps’ before it is possible to conclude someone cannot make a decision. If a person no longer remembers, you must explain all the pieces of information that you have identified as being relevant, or salient, to the decision. Consider what time of day is best for the person. Might a loved one help them to understand? Would pictures, objects of reference or transporting the person to a particular place help maximise their capacity?

Myth 7: A person needs to be able to retain information after the decision has been made.

Fact 7: This is not true. To have capacity, people only need to be able to retain the salient information for long enough to weigh their options, and communicate their decision. The MCA states ‘the fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.’

Myth 8: My next of kin can make decisions for me if a lose capacity.

Fact 8: The term ‘next of kin’ is commonly used, but does not give people any legal decision-making authority. Making a Lasting Power of Attorney (LPA) is the best way to give someone you trust the legal authority to make decisions for you if you lose mental capacity. There are 2 types, one for property and finance, and one for health and welfare decisions.

Mental Capacity Act (2005) sub group newsletters

The Derby and Derbyshire Mental Capacity Act (2005) sub group sits under the Derby and Derbyshire Safeguarding Adults Boards and aims to update professionals and volunteers who work with adults and with care and support needs on key information on the Mental Capacity Act (MCA). The sub group’s newsletters are attached to this page.