Mental Capacity Act 2005
Mental Capacity Act 2005
The Mental Capacity Act is in place to protect those people who are unable to make decisions for themselves about their care and lifestyle. Mental incapacity may be due to:
- A learning disability
- A mental health problem
- A head injury or stroke
- Senility or dementia
- Substance misuse
The Act also promotes the rights of people who can make decisions for themselves by encouraging them to do so.
The main principles of the Act are:
- Every adult is legally able to make their own decisions unless it can be shown that they are not able. It is unacceptable to judge a person’s ability based on their appearance, age, or medical condition.
- A person is not considered to lack capacity in general. The Mental Capacity Act is clear that capacity is decision specific, not generic; e.g. a person may be assessed to not have capacity to manage their own finances, but they do have the capacity to choose who they want information to be shared with about their care. It is different for each person and each decision must be assessed individually.
- People should be given all the support they need to enable them to make their own decisions. Information should be provided to help them make their decision in a format they can understand. This may mean providing information with symbols or photographs for a person with a learning disability, or in braille format for a blind person.
- People have a right to make decisions that to others may appear to be eccentric or unwise. These decisions in themselves do not mean that the person is unfit to make a decision.
- Any action or decision taken on someone else’s behalf who does not have capacity for that particular decision must always be in their best interests. Additionally when making a decision on someone else’s behalf it is important to consider their beliefs and preferences, and to involve them as much as possible.
- Any action or decision taken on behalf of someone else must be
the least restrictive of that person’s rights and freedoms.
Who assesses someone’s ability to make a decision?
As a carer, relative, health or care professional you may need to assess whether an individual is able to make a particular decision. The Mental Capacity Act advises that you should consider whether the person can:
- Understand the decision that needs to be made
- Understand the consequences of making a particular choice
- Retain information
- Weigh up the information and use it to make a decision
- Communicate their decision, or be helped to do so
The Mental Capacity Act has established a number of new safeguards including:
- It is a criminal offence to ill treat or wilfully neglect a person who cannot make decisions for themselves.
- Establishing Independent Mental Capacity Advocate (IMCA). If someone has difficulty making decisions for themselves and has nobody to help them act on their behalf they will be represented by an IMCA.
- A Court of Protection will have the power to appoint deputies, make declarations about someone’s ability, or make decisions on someone’s behalf.