Mental Capacity Act 2005: information for the public
The Mental Capacity Act (MCA) 2005 is a law that came into force in 2007 and applies to people living in England and Wales over the age of 16. The Mental Capacity Act 2005 provides requirements to support people who may 'lack mental capacity' as well as giving a legal framework for carrying out assessments and making decisions on an incapacitated person's behalf.
The spirit and intention of the act can be summarised as:
'…enabling and supportive of people who lack capacity, not restricting or controlling of their lives' (Mental Capacity Act 2005 Code of Practice, 2007)
The definition of 'lacking mental capacity'
This is provided in section 2 of the act:
'For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.'
Mental Capacity is Issue Specific and Time Specific - about a real decision at the time it is required to be made.
Whether it is relating to day-to-day decisions, that affect daily life, or more serious or significant decisions, the same definition and ‘test of capacity’ applies
The process of making 'best interests' decisions
The process of making 'best interests' decisions (when a person is assessed as lacking mental capacity in the particular decision) is provided in section 4 of the act and summarised below:
- avoid discrimination
- consider whether the person might regain capacity
- encourage participation
- not be motivated in any way by a desire to bring about the person's death
- identify all the relevant circumstances
- the person's wishes, feelings, beliefs and values
- consult others
- take all of this into account:
- avoid restricting the person's rights
- weigh up all of these factors in order to work out what's in the person's best interests
The Mental Health Capacity Act 2005 has five statutory principles, which must be followed:
- a person must be assumed to have capacity unless it is established that he/she lacks capacity.
- a person is not to be treated as unable to make a decision unless all practicable steps to help him/her to do so have been taken without success
- a person is not to be treated as unable to make a decision merely because he/she makes an unwise decision
- 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 his/her best interests
- 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
Key areas covered in the Mental Capacity Act 2005 are:
- How to support people to make their own decisions?
See Chapter 3 of the Code of Practice (link opens in new window)
- When and how should Mental Capacity be assessed?
See Chapter 4 of the Code of Practice (link opens in new window)
- When and how should ‘best interests’ decisions be made on another person’s behalf?
See Chapter 5 of the Code of Practice (link opens in new window)
- How can people make decisions that have legal standing in the future?
See Chapters 7, 8 and 9 of the Code of Practice (link opens in new window)
- What independent help (advocacy) are people entitled to when certain important decisions are required, such as decisions about serious medical treatment or changes to their accommodation
See Chapter 10 of the Code of Practice (link opens in new window)
- the MCA 2005 statute (link opens in new window)
- the MCA 2005 Code of Practice (link opens in new window)
If you have any further questions in relation to the Mental Capacity Act 2005, you may also wish to speak with our Mental Capacity Act 2005 Lead Officer:
Telephone: 0300 300 8122