The Mental Capacity Act
The Mental Capacity Act 2005 provides a framework to empower and protect people who may lack capacity to make some decisions for themselves.
What is mental capacity?
Mental capacity is the ability to make a decision (and understand the consequences of that decision). A person’s ability to make a decision depends on what the decision is and what else is happening in the person’s life at the time the decision needs to be made. This is why a capacity assessment should only ever relate to a particular decision at a particular time.
What is the point of doing a capacity assessment?
The purpose of any capacity assessment is not to judge the decision a person makes; it is to determine whether a person is able to make the decision. To be able to make a decision you have to be able to:
- understand the information relevant to the decision
- retain that information (if only for a short amount of time)
- use or weigh up that information as part of making the decision, or
- communicate the decision (whether by talking, using sign language or any other means).
Are any decisions not covered by the Mental Capacity Act?
There are certain decisions that cannot be made for another person under Mental Capacity Act law. This is because the decision is either so personal to the individual concerned, or because it is governed by other legislation. Decisions that cannot be made under Mental Capacity Act law include:
- Consenting to marriage or a civil partnership
- Consenting to sex
- Consenting to a child being placed for adoption
- Voting at an election.
What are the 5 key principles?
We must begin by assuming that people have capacity
You should never assume that just because a person has a learning disability that they lack capacity to make decisions. Capacity changes over time for all of us. If a person has been unwell or recently bereaved, their ability to make decisions (particularly big decisions such as moving house) are likely to be impacted. Where possible, major decisions should be postponed until the person’s circumstances and ability to take part in the decision making process improves.
People must be supported to make decisions
Information should be given in a way that makes sense to the person. Easy read is a common approach to make information accessible to a person with a learning disability. A person may also require a family carer or support worker to help them feel at ease during the assessment.
Unwise decisions do not necessarily mean a lack of capacity
A person has a right to make an unwise decision. The purpose of a capacity assessment is to determine a person’s ability to make the decision, not to make a value judgement on their decision.
Decisions must be taken in a person’s best interests
This is a difficult concept. It means putting yourself in the person’s shoes. Past decisions and knowledge of what is important to the person are crucial considerations during this process. Everyone involved should imagine what the person would choose if they did have capacity.
Consider whether a decision can be made in a way that is less restrictive of a person’s freedom
Take for example an individual whose mobility has recently deteriorated: the individual has no desire to move from their current home, but a recent capacity assessment found that even with support the individual lacked the capacity to understand their changing health needs and their ability to manage stairs. Following a best interests process, the least restrictive option would be to adapt the home by fitting a stair lift or moving the person downstairs; whereas the most restrictive option would be to decide that the person should move home. The least restrictive option should always be chosen, where possible.
For more information see:
- Hft – Using the Mental Capacity Act
- Gov.uk – Mental Capacity Act Code of Practice
- Mencap – Mental Capacity Act Resource Pack
- Foundation for People with Learning Disabilities – Thinking ahead: a planning guide for families