Mental Capacity Act

The Mental Capacity Act (MCA) 2005

The Mental Capacity Act (MCA) 2005 applies to people aged 16 and over in England and Wales. It provides a legal framework for making decisions on behalf of people who may lack the mental capacity to make certain decisions for themselves.

The Act aims to empower people to make their own decisions wherever possible and to protect those who cannot make specific decisions at the time they need to be made.

What is mental capacity?

Mental capacity is the ability to make a particular decision at the time that decision needs to be made.

A person may lack capacity because of an impairment or disturbance in the functioning of their mind or brain. This could be due to:

a learning disability
dementia
a mental health condition
a brain injury
a stroke
illness, unconsciousness or the effects of medication
other conditions affecting the mind or brain

Having a diagnosis does not automatically mean a person lacks capacity. Capacity is decision-specific and can change over time.

The five principles of the Mental Capacity Act

Anyone supporting a person to make decisions must follow these five statutory principles:

Presume capacity – Every adult has the right to make their own decisions unless it is established that they lack capacity.
Provide support – All practicable steps must be taken to help someone make their own decision before deciding they cannot do so.
Respect unwise decisions – A person should not be treated as lacking capacity simply because they make a decision others consider unwise.
Act in best interests – Any decision made on behalf of a person who lacks capacity must be made in their best interests.
Choose the least restrictive option – Any action taken should interfere as little as possible with a person's rights and freedoms.

How is capacity assessed?

To determine whether a person lacks capacity to make a specific decision, a two-stage test is used.

Stage 1

Is there an impairment or disturbance in the functioning of the person's mind or brain?

Stage 2

Because of that impairment or disturbance, is the person unable to make the specific decision when it needs to be made?

A person is unable to make a decision if they cannot:

understand the information relevant to the decision
retain that information long enough to make the decision
use or weigh that information as part of the decision-making process
communicate their decision by any means, including speech, sign language, gestures, pictures or other communication methods

Best interests

If a person lacks capacity to make a particular decision, any decision made on their behalf must be in their best interests.

When deciding what is in a person's best interests, you should:

not make assumptions based on age, appearance, condition or behaviour
consider all relevant circumstances
consider whether the person is likely to regain capacity and be able to make the decision themselves at a later date
encourage and support the person's participation as much as possible
consider the person's past and present wishes, feelings, beliefs and values
take into account the views of people involved in the person's care and welfare, such as family members, friends, carers, attorneys or deputies
consider whether there is a less restrictive way of achieving the intended outcome

Planning ahead

The Mental Capacity Act enables people to plan for the future by:

making a Lasting Power of Attorney (LPA) to appoint someone to make decisions on their behalf if they lose capacity in the future
making an Advance Decision to Refuse Treatment (ADRT), which allows someone to refuse specific medical treatment in advance

Independent Mental Capacity Advocates (IMCAs)

An Independent Mental Capacity Advocate (IMCA) may be appointed when a person lacks capacity to make certain important decisions and there is no appropriate family member or friend available to support or represent them.

IMCAs help ensure that the person's rights, wishes and feelings are considered during the decision-making process.