Mental Capacity Act Resources

The Mental Capacity Act (MCA) 2005 applies to everyone involved in the care, treatment and support of people aged 16 and over, living in England and Wales who are unable to make all or some decisions for themselves.

All professionals have a duty to comply with the Mental Capacity Code of Practice. The resources below are available to support all practitioners in their understanding and duties under the Mental Capacity Act 2005 and Human Rights Act 1998.

Having mental capacity means that a person is able to make their own decisions. The Mental Capacity Act says that a person is unable to make a particular decision if they cannot do one or more of the following four things.

  • Understand information given to them.
  • Retain that information long enough to be able to make the decision.
  • Weigh up the information available to make the decision.
  • Communicate their decision – this could be by talking, using sign language or even simple muscle movements such as blinking an eye or squeezing a hand.

We all have problems making decisions from time to time, but the Mental Capacity Act is about more than that. It is specifically designed to cover situations where someone is unable to make a decision because the way their mind or brain works is affected, for instance, by illness or disability, or the effects of drugs or alcohol. A lack of mental capacity could be due to:

  • a stroke or brain injury;
  • a mental health problem;
  • dementia;
  • a learning disability;
  • confusion, drowsiness or unconsciousness because of an illness or the treatment for it; or
  • substance misuse.

The type of decisions that are covered by the MCA range from day-to-day decisions such as what to wear or eat, through to more serious decisions about where to live, having an operation or what to do with a person’s finances and property.

The Act’s five statutory principles are the benchmark and must underpin all acts carried out and decisions taken in relation to the Act:

  1. Presumption of capacity – A person must be assumed to have capacity unless it is established that the person lacks capacity
  2. Supporting to make own decisions – A person is not to be treated as unable to make a decision unless all practicable steps to help the person to do so have been taken without success
  3. Unwise decisions – A person is not to be treated as unable to make a decision merely because they make an unwise decision
  4. Best Interest – 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. Least restrictive – 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.

The MCA applies to situations where a person may be unable to make a particular decision at a particular time because their mind or brain is affected, for instance, by illness or disability, or the effects of drugs or alcohol. For example someone may be unable to make a decision when they are depressed but may be able to make the decision when they are feeling better.

It may be the case that the person lacks capacity to make a particular decision at a particular time but this does not mean that a person lacks all capacity to make any decisions at all.

Remember – It is very important to remember at all times that lack of capacity may not be a permanent condition. Assessments of capacity should be time and decision specific.

Remember – Capacity must be assessed, even if it is largely believed that a person does not have mental capacity to make decisions across most areas of their life; to do otherwise is unlawful and could constitute a breach of human rights.