Mental Capacity Act (2005)

The Mental Capacity Act (MCA) is a law that protects the rights of people aged 16 and over. It enables them to make their own decisions wherever possible.

It also adds a safety net for those who are unable to make a specific decision due to a mental disorder.

This can be decisions about:

• minor things like what food to buy or what to wear
• more serious things like whether to move to a care home or have major surgery

Find out more about the MCA and making decisions on these websites:

• Mind UK
• GOV.UK

The 5 key principles

The MCA has 5 key principles that everyone must follow. These are:

1. A person must be assumed to have capacity unless it is established that they lack capacity.
2.  A person is not to be treated as unable to make a decision unless all practicable steps to help them to do so have been taken without success.
3. A person is not to be treated as unable to make a decision merely because they make an unwise 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 their best interests.
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.

Assessing capacity

Anyone can assess capacity. Some more complex decisions may need a trained professional to do this, such as a doctor or social worker.

For a person to make a decision, they need to be able to:

• understand the information relevant to the decision
• remember the information long enough to make a decision
• work out what they think about it. This includes weighing up the advantages, disadvantages and likely consequences
• communicate their decision to others

A person has a lack of capacity to make a particular decision if they are unable to do:

• one or more of the 4 steps above
• this due to a mental disorder such as (but not limited to) dementia, a brain injury or a learning disability

People who lack capacity - easy read

Best interest decisions

If someone is unable to make a specific decision, then the decision will need to be made in their best interests.

Sometimes, a person will have:

• made a Lasting Power of Attorney
• made an Advance Decision
• a Court Appointed Deputy who can make the decision on their behalf

Anyone who makes a best interest decision must abide by the law and follow the Code of Practice.

The person must still be involved in the decision, even if they lack capacity. Their wishes and feelings should be taken into account.

Others involved in the person's life should also be spoken with. They should be given the opportunity to share their views. That includes:

• family members
• friends
• carers
• other professionals
• their advocate (if relevant)

If a best interest decision cannot be reached, an application may be made to the Court of Protection. This means a judge will make the final decision.

No one can make decisions on another person's behalf about consent to sex or marriage.

Lasting Power of Attorney

GOV.UK provide a Guide to set, register or end a Power of Attorney.

Office of the Public Guardian provides a Guide to completing forms for Power of Attorney and can help you decide if you should make one.

Age UK have a factsheet about Arranging for someone to make decisions on your behalf

Advocacy

Advocacy helps a person to speak up and get involved when decisions are being made about their life. It means having someone on your side.

If you're aged 16 to 17

Find information about how advocacy can help you on the Council for Disabled Children website

If you're a parent of a young person with special educational needs or a disability (SEND) 

Find information about how advocacy can help you as a parent of a young person with SEND on the Council for Disabled Children website

If you're aged 18 or over

Find out how Swan Advocacy may be able to help you