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What is mental capacity?

Contents

Mental Capacity Act 2005

The Mental Capacity Act 2005 (MCA) sets out what happens when people are unable to make decisions i.e. when they lack capacity to make decisions. The MCA came into full force on 1 October 2007 in England & Wales.

The MCA is supported by a Code of Practice (the 'Code'). All professionals, such as GPs, doctors, social workers and paid carers, must comply with the Code when they are supporting anyone who lacks capacity.

The 5 principles of the Act

There are 5 principles of the MCA:

1. All adults have the right to make decisions for themselves unless it is shown that they are unable to do so. This means that people may not assume that you cannot make a decision for yourself just because you have a particular medical condition or disability, or because of your age or appearance.

2. People should be supported as much as possible to make their own decisions before anyone concludes that they cannot do so. This support may be given through using different ways of communication such as words, pictures or signs, and providing information in different formats. In some cases an independent advocate may be able to help.

3. People are allowed to make a decision that may seem to other people unwise or strange and a person should not be treated as unable to make a decision because of this.

4. If a person lacks capacity, any decisions or actions taken on their behalf must be taken in their best interests (unless they have made a relevant and valid decision in advance to refuse medical treatment). It is still important to involve the person wherever possible in making the decision.

5. People who lack capacity should not be restricted unnecessarily. So the person making the decision or taking the action must decide or act in a way that would cause little interference with the freedom and rights of the person who lacks capacity.

What does it mean to 'lack capacity'?

If you have mental capacity, you are able to make decisions for yourself. The legal definition says that someone who lacks capacity cannot do one or more of the following things:

  • Understand information given to them
  • Retain that information long enough to be able to make a decision
  • Weigh up the information available to make a decision
  • Communicate their decision by any possible means such as talking, using sign language or even simple muscle movements like blinking an eye or squeezing a hand.
The MCA applies to situations where you may be unable to make a particular decision at a particular time, to the extent that you cannot do one or more of the points above. For example, someone with dementia may be unable to retain information long enough in order to make decisions, or someone with a mental health problem may feel too depressed to make a decision that he or she is able to make when feeling less depressed. However, in these instances, this does not necessarily mean that a person lacks all capacity to make any decisions at all. For example, a person with a learning disability may lack the capacity to make complex decisions, but this does not necessarily mean that they cannot decide what to eat, wear and do each day.

Lasting powers of attorney

Under the MCA, a new type of power, called the lasting power of attorney, replaces what used to be known as the enduring power of attorney (EPA). You can no longer create EPAs, although those created before the date of the MCA can still continue to be registered.