The Mental Capacity Act protects people who may potentially lack the mental capacity to make decisions about their care.

Applying to people aged 16 and over, it’s a piece of legislation which provides a legal framework for making decisions on their behalf. These can be simple things, like what to eat for dinner, or major decisions like where to live or whether to undergo major surgery.

The Mental Capacity Act says:

  • assume a person has the capacity to make a decision themselves, unless it's proved otherwise

  • wherever possible, help people to make their own decisions

  • don't treat a person as lacking the capacity to make a decision just because they make an unwise decision

  • if you make a decision for someone who doesn't have capacity, it must be in their best interests

  • treatment and care provided to someone who lacks capacity should be the least restrictive of their basic rights and freedoms

There are a number of reasons someone may lack mental capacity. For example, someone may:

  • have dementia
  • be living with a learning disability
  • have a serious mental health illness
  • have a stroke/brain injury
  • be unconscious after a sudden accident

However, just because a person has one of these conditions, it does not mean they lack capacity to make a decision. To illustrate, someone may be able to make decisions about what food they want to eat, but not about major financial choices.

The Mental Capacity Act ensures individuals can plan ahead and state their preferences for care and appoint a trusted person to make decisions for them if they lack capacity at a point in the future.

There is a two-stage test of capacity.  According to the Mental Capacity Act, a person is unable to make a decision if they are unable to:

  • understand the relevant information
  • retain the above information
  • use that information as part of the decision-making process
  • communicate the decision

The MCA sets out the two-stage test for capacity to be:

  • Does the person have an impairment of their mind or brain, whether as a result of an illness, or alcohol or drug use? It needs to be clear what the impairment is.
  • 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. 

It should always be remembered that just because someone lacks capacity to make a decision on one occasion, does not mean they will never have capacity to make that decision in the future, or to make a decision on an unrelated subject.

When someone is deemed to lack capacity, a decision must be made in the persons best interests, and aim to be the least restrictive option to the person in terms of their rights and freedom of action. 

Anyone who works in health and social care and is involved in the care or treatment of someone who is unable to make all or some decisions for themselves must abide by the Mental Capacity Act.

It also applies to anyone who cares for someone who lacks capacity, including family, friends and unpaid carers.