Mental capacity: making decisions about your life
Mental capacity is the ability to make your own decisions.
The Mental Capacity Act is a set of rules that protects you if you find it difficult to make some decisions some or all of the time, because of an ‘impairment or disturbance of the functioning of the mind or brain’.
This may apply to people with dementia, learning disabilities, stroke, brain injury and other conditions.
Most of the Mental Capacity Act applies to people aged 16 and over.
Find out more if you believe someone may be being deprived of their liberty in a care home or hospital.
The Code of Practice
The Mental Capacity Act is very important for health, social care and other practitioners who work with people who lack capacity to make a decision. It says that they must put the person who ‘lacks capacity’ at the heart of decision making.
The Code of Practice provides practical guidance. It describes how the Act should be understood and used on a day-to-day basis and gives examples.
Informal and unpaid carers will find the Code of Practice helpful.
Paid carers and other practitioners have a ‘duty’ to follow the guidance in the Code of Practice or give good reason why not.
The Mental Capacity Act: main principles
The most important principles of The Mental Capacity Act are:
- you must be assumed to have capacity to make decisions unless it can be proved otherwise
- you're not to be treated as unable to make a decision unless all practicable steps to help you make a decision have been taken without success
- you're not to be treated as unable to make a decision because you make decisions that others might think are unwise
- if you do lack capacity, an act done or decision made on your behalf must be made in your best interest
- whoever acts or decides on your behalf must do so in a way that is the least restrictive on your basic rights and freedom of action.
The principle of ‘least restriction’ is very important. This means professional care and support workers may find another way to provide support which is less restrictive, but means that there are still some risks to your safety. However these risks can be managed and are outweighed by other benefits that such as emotional and psychological wellbeing.
Definition of ‘lacking capacity’ to make an important decision
Under the Mental Capacity Act, if you don't have ‘mental capacity’, it means you're not able to make a particular decision for yourself at the time it needs to be made.
The law says that for a person to lack capacity to make a decision, they must be unable to do one or more of the following:
- understand information relevant to a decision
- remember that information long enough to be able to make the decision
- use or weigh up the benefits and disadvantages of a decision
- communicate their decision.
If it is uncertain whether you're able to make a decision for yourself, the Mental Capacity Act says that you must be given as much support as possible to make your own decisions.
If you lack capacity to make a particular decision when it needs to be made, the decision will be made in your ‘best interests’.
Definition of ‘important decisions’
The Mental Capacity Act can apply to decisions about:
- personal finance
- where to live
- social care
- medical treatment
- what to wear or eat
- social activities
- day-to-day spending.
The Act does not cover decisions about compulsory detention or compulsory admission to hospital and treatment for a mental disorder. These decisions can be made without your consent, whether or not you're judged to have capacity to make the decision.
Who assesses capacity will depend on the circumstances. Before the Mental Capacity Act, the assessment was made by experts such as psychiatrists.
Under the Mental Capacity Act, the person assessing capacity is known as the ‘decision maker’. The decision maker is usually the person who proposes action or treatment and who has the responsibility to carry this out.
They may need to get advice from specialists who have knowledge about a particular condition and how it affects your ability to make a decision.
The decision maker may ask your family or carer for advice because they know you well and can support you to communicate your needs and feelings.
Who decides if I have capacity to make a decision
Some of the people who could assess your mental capacity to make a decision are:
- friends, family members, carers or advocates: for everyday decisions.
- doctors: for when decisions are more complex. For example, if the decision is about a medical treatment, it will be the doctor recommending the treatment
- social workers: for when decisions are more complex. For example, if the decision is about living at home with support services, or moving into a placement.
All decision makers must take into account your emotional and psychological wellbeing and social inclusion when making a decision.
All medical and social care professionals and paid carers, as well as other people carrying out certain roles and functions created by the Mental Capacity Act, must demonstrate that they have considered the guidance provided in the Mental Capacity Act Code of Practice when they are supporting someone who lacks or may lack capacity to make a decision.
How a decision is made on your behalf
Decisions made on your behalf should interfere as little as possible with your basic rights.
When making a best interest decision, the decision maker must:
- consider whether it is likely that you'll have capacity to make the decision at some time and when that is likely to be
- involve you in the decision-making process
- have regard for your past and present wishes and feelings, or written statements
- consult with others who are involved in your care.
If you do not have someone to help you make a decision
An Independent Mental Capacity Advocate must be appointed if you lack capacity to make important decisions and do not have family or friends who can support you. Important decisions could be about long-term change of accommodation or serious medical treatments.
Planning ahead to make decisions in future
The Mental Capacity Act also applies to people who want to plan ahead in case they are unable to make important decisions for themselves in the future. You can appoint a Lasting Power of Attorney or make an advance decision to refuse treatment.
Ill treatment and neglect
This is a criminal offence under the law and applies to health and social care staff, carers as well other people involved in supporting a person who may lack capacity, such as lasting powers of attorney or court-appointed deputies.
- Mental Capacity Act Code of Practice
- Office of the Public Guardian: Protects people in England and Wales who may not have the mental capacity to make certain decisions for themselves, such as about their health and finance. The Office of the Public Guardian grants Lasting Powers of Attorney and Deputies.
- Mental Capacity Act - easy read guide
- Who decides when you can’t? - Mental capacity Act public information booklet
- Independent Mental Capacity Advocate service Public Information Booklet
- POhWER, the Independent Mental Capacity Advocate Service Commissioned by Brighton & Hove City Council
- Court of Protection: The court makes decisions when applications are made regarding the property, financial affairs and personal welfare of people who lack mental capacity to make decisions for themselves.
- Information and guidance about advance decision (PDF 127KB): This refers to people with dementia, but could apply to anyone with any progressive condition.
- Rethink: National charity that offers information and advice, including a phone helpline.
- Next of Kin - Understanding decision making authorities (PDF 3.5MB): A helpful leaflet that clarifies how people can plan ways, with those they love, to ensure their wishes are taken into account if through illness they cannot take decisions for themselves.