Introduction, Purpose and Principles of the Act
1. The Purpose of the Mental Capacity Act
The Mental Capacity Act 2005 is a comprehensive statutory framework that:
- Protects the autonomy of people who have capacity to make their own decisions; and
- Protects people who lack capacity, by ensuring that they are always involved in decisions relating to them, and that any decisions made on their behalf are made in the right way.
2. Defining Mental Capacity
Someone who has Mental Capacity is able to make their own decision at the time when that decision needs to be made.
Section 3 of the Mental Capacity Act says that any person from the age of 16 is able to make their own decision if they can do all of the following four things:
- Understand information given to them;
- Retain that information long enough to be able to make the decision;
- Weigh up the information available to make the decision; and
- Communicate their decision.
The Mental Capacity Act starts on the premise that everyone is able to make their own decision, and decisions can only be made on their behalf if it can be proven that they lack capacity to do so.
A person cannot be deemed to lack capacity to make their own decision merely based on:
- Their age;
- Their appearance;
- Their behaviour; or
- A physical or mental health condition.
3. The 5 Statutory Principles of the Act
There are 5 principles (values) that underpin the Mental Capacity Act. These are defined in section 1 of the Act and set out in the table below.
The principles must be clearly applied when using and making a decision under the Act. If they are not clearly applied any decision that is made on behalf of a person who lacks capacity is not lawful.
|1||A person must be assumed to have capacity unless it is established that they lack capacity.||Every person from the age of 16 has a right to make their own decisions if they have the capacity to do so. Practitioners and carers must assume that a person has capacity to make a particular decision at a point in time unless it can be established that they do not.|
|2||A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.||People should be supported to help them make their own decisions. No conclusion should be made that a person lacks capacity to make a decision unless all practicable steps have been taken to try and help them make a decision for themselves.|
|3||A person is not to be treated as unable to make a decision merely because he makes an unwise decision.||A person who makes a decision that others think is unwise should not automatically be labelled as lacking the capacity to make a decision.|
|4||An act done or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.||If the person lacks capacity any decision that is made on their behalf, or subsequent action taken must be done using Best Interests, as set out in the Act.|
|5||Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action.||As long as the decision or action remains in the person's Best Interests it should be the decision or action that places the least restriction on their basic rights and freedoms.|
Click here to access guidance about supporting people to make their own decisions under the Act.
Click here to access guidance about carrying out a Mental Capacity Assessment.
Click here to access the guidance about making decisions under Best Interests.
4. When to use the Mental Capacity Act
When the Mental Capacity Act applies
The Mental Capacity Act applies whenever:
- There are doubts over the ability of any person (from the age of 16) to make a particular decision at a particular time; and
- The person has an impairment of, or a disturbance in the functioning of the mind or brain.
Under the Act mental capacity is both 'decision specific' and 'time specific'. This means that:
- A person cannot lawfully be deemed or assumed to 'lack capacity' generally; and
- The Mental Capacity Act must be applied for each time that a decision needs to be made.
When the Mental Capacity Act does not apply
The Mental Capacity Act does not apply when:
- There are no concerns or doubts about the person's mental capacity; or
- The person does not have an impairment of, or a disturbance in the functioning of the mind or brain.
Under the Mental Capacity Act the impairment of, or disturbance in the functioning of the mind or brain can be either:
- Permanent or temporary;
- Diagnosed or undiagnosed.
|Type of impairment of disturbance||Description||Example|
|Permanent||Any impairment or disturbance that is life-long or on-going||Dementia, learning disability|
|Temporary||Any impairment or disturbance that is short term||Coma, confusion following an accident|
|Diagnosed||An impairment or disturbance caused by a condition that has been formally diagnosed by a suitably qualified medical professional||A personality disorder, an acquired brain injury|
|Undiagnosed||An impairment or disturbance caused by a condition that has either not been diagnosed, is unlikely to be diagnosed or is under investigation||
Forgetfulness without diagnosis
It is the responsibility of the person who has doubts about capacity to be satisfied, based upon the evidence available to them that an impairment or disturbance of the mind or brain exists.If an impairment of, or a disturbance in the functioning of the mind or brain exists it must then be established whether or not that impairment or disturbance is the reason that a person is unable to make a decision. Only then can they be deemed to lack capacity.
5. The Mental Capacity Act and Care and Support
Charging for services
Under section 7 of the Mental Capacity Act, any service provided to an adult who lacks capacity to consent to receiving it is still chargeable, so long as it is necessary based on the person's circumstances and needs.
Arranging and paying for services
Under Section 5 of the Act it is lawful for a Decision Maker to arrange services to meet the needs of a person who lacks capacity, so long as:
- The services are necessary ; and
- The services are in the person's Best Interests.
Under Section 8 of the Act the Decision Maker is able to arrange payment for any services they arrange from the person's financial resources.
However, it is not lawful for a Decision Maker providing necessary care services for the person to:
- Take their own payment for services from the person's financial resource; or
- Take any reimbursement of expenses owing from the person's financial resource.
6. The Code of Practice
There is a Code of Practice to support effective implementation of the Mental Capacity Act.
There is a duty under the Act for all persons and organisations with a responsibility for making decisions, or carrying out acts when a person lacks capacity to have regard to the code at all times, regardless of the existence of other guidance.
If it appears to a Court or Tribunal conducting any criminal or civil proceedings that a failure to comply with the code has occurred this will be taken into account in any subsequent determination they make.Click here to access the Code of Practice for the Mental Capacity Act 2005.