Mental Capacity Law

Imagine losing the ability to make important decisions for yourself, such as:

• Whether to sell your house
• Where you live
• What medical care you receive

Who would make those decisions for you?

The Mental Capacity Act allows individuals to decide and enables people to appoint someone they can trust to make decisions on their behalf.

What is capacity?

Capacity is having the ability to make decisions and remember decisions made.

Presuming capacity:

Can someone make their own decisions?

• Capacity looks at a person's ability to make a specific decision at a specific time.
• If someone cannot make a decision, it may be a permanent or temporary problem (this is called fluctuating capacity).
• Whether someone has capacity is decided on a balance of probability.

The Mental Capacity Act

The Mental Capacity Act of 2005 was brought in to protect the rights of people with learning difficulties or those who have had their mental capacity affected by a stroke, dementia or a brain injury. People who are unable to make decisions due to an unconscious state brought on by an anaesthetic or a sudden accident are also protected by this area of law.

The purpose of the Mental Capacity Act is to ensure that, wherever possible, people have the power to make choices about their own lives. Guidance is also given to care workers and family members as to how far they should go in making decisions on behalf of the people they care for.

Central to the Mental Capacity Act is the principle that, as far as possible, people should be involved in the decision making processes that affect their lives and that, if choices are being made on their behalf, those decisions should be in their best interests.

This legislation enshrines in law a patient's right to state what level of treatment they would like to receive if or when they lose capacity. The act also clarifies the law in relation to the provision of treatment for individuals who may lack capacity to consent to treatment on their own behalf.

Lasting power of attorney

The lasting power of attorney enables individuals to nominate somebody else who can make decisions on their behalf if, at a future time, they should lose capacity.

If an individual has no family or friends to appoint as their decision maker, the NHS body or local authority will be able to appoint an independent mental advocate to support them in making decisions about serious medical treatment, care homes or hospitals. Again, whoever is making decisions must do what is best for the person they are caring for. Providing that the supporter follows these guidelines, the Mental Capacity Act will protect them against legal liability for this person.

The principles of the Mental Capacity Act

The Mental Capacity Act has five principles:

1. The assumption of capacity

We must assume that every adult has capacity which means that we presume that they can make a decision. We only change this viewpoint when it is shown that they cannot make a decision.

2. Help people make a decision

Individuals must be supported as much as possible to make their own decisions before it is assumed that they cannot make their own decisions.

3. People can make unwise decisions

The understanding that individuals are entitled to make unwise decisions. The decision makers (people making decisions on their behalf) shouldn't simply assume that a person lacks capacity because they have made a series of unwise decisions.

4. If someone has not got capacity

Anyone who needs to make a decision should do so in the person's best interests.

5. When a best interest decision is made

It should be done so in the least restrictive way (in terms of their human rights).

If you would like some more advice relating to Mental Capacity Law, all you have to do is type your question into the online portal on our homepage and one of our solicitors will respond to you within 60 minutes, for free and with no obligation.