The Mental Capacity Act

15th October 2019

The Mental Capacity Act is designed to protect people (over the age of 16) who may lack the mental capacity to make their own decisions about their care and treatment.

The people who may lack capacity include those who are diagnosed with:


  1. dementia
  2. a severe learning disability
  3. a brain injury
  4. a mental health illness
  5. a stroke
  6. unconsciousness caused by an anesthetic or accident.


Just because a person has one of the health conditions mentioned above does not mean they lack capacity to make a specific decision. Someone can lack capacity to make some decisions but still have capacity to make other decisions. Mental capacity can fluctuate with time – someone may lack capacity at one point in time but may be able to make the same decisions at a later point in time.


The Mental Capacity Act allows people to express their preferences for care and treatment, and to appoint a trusted person to make decisions on their behalf.


People who lack capacity should also be provided with an independent advocate who will support them to make decisions in certain situations, such as serious treatment or where the individual might have significant restrictions placed on their freedom and rights in their best interests.


How Is Mental Capacity Assessed?

The Mental Capacity Act sets out a two stage test of capacity which is:


  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 abuse?


  1. Does the impairment mean that the person is unable to make specific decisions when they need to?


The Mental Capacity Act says that a person is unable to make a decision if they can’t:


  1. Understand the information relevant to the decision
  2. Retain that information
  3. Use or weigh up that information as part of the process of making the decision.
  4. Communicate their decision.


The Main Principles Of The Mental Capacity Act Are:


  1. Everyone is believed to have capacity to make decisions unless it can be proven that they do not.


  1. A person should be supported to make their own decisions using all practicable steps before it is decided that they are unable to do so.


  1. A person should not be considered unable to make a decision simply because their decision is considered unwise or eccentric by others.


  1. Any decision made on behalf of someone who lacks capacity must be made in their best interests.


  1. Any best interests decisions must take into account of all the circumstances and take the least restrictive course of action available to maintain the person’s basic rights and freedom.



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