The Mental Capacity Act, 2005 (Applicable for people 16 years old and over)

The Mental Capacity Act (MCA) 2005, is designed to protect and empower people who may lack the mental capacity to make their own decisions about their care and treatment. It applies to people aged 16 and over.

What is capacity?

A person lacks capacity when they are unable to make a decision for themselves regarding a specific matter. This could be due to an impairment of, or a disturbance in the functioning of, the mind or brain. It does not matter whether the impairment or disturbance is permanent or temporary.

How is mental capacity assessed?

The MCA sets out a 2-stage test of capacity:

1) Does the person have an impairment of their mind or brain, whether as a result of an illness, or external factors such as alcohol or drug use?

2) Does the impairment mean the person is unable to make a specific decision when they need to? People can lack capacity to make some decisions, but have capacity to make others. Mental capacity can also fluctuate with time – someone may lack capacity at one point in time, but may be able to make the same decision at a later point in time.

Where appropriate, people should be allowed the time to make a decision themselves.

Under the Mental Capacity Act an individual lacks capacity when:

1. Unable to understand the information relevant to the decision
2. Unable to retain the information
3. Weigh information as part of the decision making process
4. Communicate their decision (whether by talking, using sign language or any other means)

Assumptions of mental capacity should not be determined by:

• age
• appearance
• a condition or aspect of the individual’s behaviour where unjustified assumptions can be made

The five core principles of the Mental Capacity Act are:

1. A person must be assumed to have capacity unless it is established that they lack capacity
2. A person must be provided as much support as possible to make a decision for themselves
3. A person has the right to make a decision even if others think is unwise
4. If a person lacks capacity, all decisions or acts made on their behalf must be made in their best interest
5. The least restrictive method of what needs to be done should be picked, providing the person with as much freedom as possible, but still for their best interest

Resources

• Haringey Safeguarding Adults Board Mental Capacity Act & Deprivation of Liberty Safeguards Staff Procedures and Guidance 
• POhWer - Support service (external link)
• The Mental Capacity Act (external link)
• The Mental Capacity Act easy read (external link)
• The Mental Capacity Act Code of Practice (external link)