Mental Capacity Act 2005

The Five Key Principles:

• Every adult has the right to make his or her own decisions, and everyone should be assumed to be capable of doing this unless actually proved otherwise.
• Everyone should be given all the support they need to make their own decisions before they are judged incapable of doing this.
• People should have the right to make "eccentric" or "unwise" decisions - it is their capacity to make decisions, not the decisions themselves that may be in question.
• Anything done for or on behalf of people without capacity must be in their best interests.
• Anything done for or on behalf of people without capacity should restrict their rights and freedoms as little as possible.
  

What is the purpose of the Act?

The Act aims to protect the rights of people whose mental capacity is in doubt, and those without capacity, and clear up any confusion about who is entitled to make decisions on behalf of those who lack capacity.

To whom does it apply?

It applies to everyone over the age of 16 who does not have mental capacity.

What is meant by "mental capacity"?

It means a person's ability to make a decision about some aspect of their lives. This could be about day-to-day choices of what to wear or eat, or more difficult choices about housing, medical treatment or personal finances. Some people have the capacity to make day-to-day decisions but not more complex ones, such as agreeing to a medical operation. For some people, ability to make decisions will vary over time.

Learning disabilities, mental health problems, brain impairments and a range of other conditions can affect mental capacity.

When did the Act take effect?

The act came into effect in England and Wales in April 2007. (Scotland has its own Adults with Incapacity (Scotland) Act 2000).

How is mental capacity be assessed?

Under the Act, everyone is assumed to have capacity to make decisions for themselves unless the contrary is shown. The professionals, carers and families involved in assessing someone's capacity will have to take all reasonable steps to assess a person's ability to make a particular decision at a particular time, including their ability to understand the relevant information as well as the consequences, or possible consequences, of their decision.

Families, professionals and other carers will be able to take decisions for people without capacity, so long as these decisions are in the person's "best interests". There are some decisions, for example about marriage, sexual relationships, adoption or voting that can never be taken on behalf of another person. In considering what is in a person's best interests, the person taking the decision must consult widely amongst those interested in his or her welfare and take into account everything known about the person's feelings, beliefs and values. Professionals involved must take always into account the views of carers and family members.

What happens if a person without capacity has no friends or family to support them?

If a serious decision has to be taken about medical treatment or a significant change in care arrangements, an Independent Mental Capacity Advocate (IMCA) will be appointed to determine where the person's best interests lie.

Is it possible to plan for future loss of capacity?

A person who knows or fears that they might lose capacity in the future can appoint someone under a Lasting Power of Attorney (LPA) - which replaces the current Enduring Power of Attorney (EPA) - to take decisions on their behalf about property, financial affairs, health and welfare, in the event that they do indeed lose capacity.

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