The Mental Capacity Act came into effect in 2007 and is a piece of legislation that applies to everybody aged 16 and over who may, at some point in their lives, have some difficulties making decisions for themselves. It is designed to protect vulnerable people, ensure their voice is heard and prevent decisions being made on their behalf.

The principles

The act itself has five statutory principles which must underpin all actions carried out and decisions made for those individuals who lack capacity to make their own decision. Those principles are:

  • Every person over 16 has the right to make their own decisions, and must be presumed to have capacity to decide unless it can be proven otherwise.
  • An individual must be given all practicable help to make their own decisions.
  • Everybody over 16 has the right to make what, to other people, may seem like unwise decisions. An unwise decision does not mean that they to lack capacity.
  • Anything done for on behalf of somebody lacking capacity must be done in their best interests.
  • Anybody making a decision on behalf of somebody who may lack capacity must consider the least restrictive approach and must act in a way that least restricts the person’s rights and freedoms.

Capacity test

In order for the Mental Capacity Act to be applied it must first be established whether the individual concerned does indeed lack capacity to make that particular decision. It must be remembered that mental capacity is decision specific and somebody may have capacity in some areas and not in others. A fresh capacity assessment should be completed for each decision needing to be taken.

There is a specific capacity assessment outlined in the Act. Firstly is there an impairment or disturbance in the functioning of the mind or brain? This could be due for example to a learning difficulty, dementia, head injury or delirium. The impairment could be temporary or permanent. Secondly, is this impairment or disturbance sufficient to mean that the individual cannot make the decision at the time it needs to be made? The Mental Capacity Act states that a person is unable to make their own decision if they cannot do one or more of the following:

  • Understand information given to them about the decision.
  • Retain that information long enough to make a decision.
  • Use and weigh up the information given in order to make a decision.
  • Communicate their decision – this can be by any means.

Best interests

If an individual is assessed as lacking capacity to make a certain decision then it is necessary for somebody to make that decision on their behalf (the decision maker). This could be a relatively straight-forward and daily decision, for example, what clothes to wear or food to eat. Alternatively it could be a much more serious and complex decision, for example whether to have medical treatment or surgery. Any decision taken must be in the person’s best interests. In coming to the decision the decision maker must consider the ‘Best Interest Checklist’ which is outlined in the Act. This includes consulting others involved in the person’s care -for example family, friends and other professionals –considering the wishes and feelings of the individual concerned – both past and present – considering whether the person may regain capacity to make the decision themselves and taking account of all relevant circumstances of the case. This is a not an exhaustive list but any decision maker must demonstrate how they have considered this checklist when making any decision on behalf of somebody who may lack capacity.

When used correctly, the Mental Capacity Act provides a vital safeguard and protection for individuals who may struggle to make decisions for themselves. It should ensure that the voice of someone over 16 is heard and considered in all aspects of their care as well as those of their families. It should also make certain that the isolated approach of the ‘professional knows best’ approach to decision making becomes a thing of the past as they are now legally obliged to follow the principles of the Act in all their dealings with vulnerable people who may lack capacity.

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