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The Mental Capacity Act 2005, or MCA provides a framework to empower and protect people who may lack the capacity to make some decisions themselves. It makes it clear who can take decisions in which situations and how they should go about this. 

The act contains 5 key principals which anyone who works with or cares for an adult who lacks capacity must comply with the MCA when making decisions or acting for that person.

Principal 1 – people who lack capacity. Every adult has the right to make his or her own decisions and must be assumed to have the capacity to make them unless it is proved otherwise. This means that you cannot assume or establish that a person does not have the capacity to make a decision due to his or her: 

  • Age
  • Appearance
  • Medical condition
  • Disability
  • An aspect of behaviour which might lead others to make unjustified assumptions about his / her capacity.

A person can be determined as lacking capacity if at the time he or she is unable to make a decision for him or herself because of an impairment, or a disturbance in the functioning of the mind or brain. It does not matter if the impairment or disturbance is permanent or temporary.

However, there is no power under this act that may be exercised where a person is under the age of 16.

Principal 2 the inability to make decisions:

For the purposes of the act, a person can be determined as being unable to have the capacity to make his or her own decision if they are unable to

Understand the information given to them relevant to the decision he or she has to make, however, this information must be given in the most appropriate way to the person whether this means that the information has to be given in simple language or using visual aids etc.

If the person is unable to retain information or be able to use the information given to them as part of their decision-making process, or be able to communicate his or her decision, whether this is by talking, using sign language or by any other means.

You must give the person making the decision all the of the practical help that you can in the decision making and information regarding possible consequences of the decision must be made clear to the person. You may not treat a person as unable to make a decision unless all practical steps have been made to help them without success.

Principal 3 - Unwise decisions:
A person is not to be treated as unable to make a decision merely because he or she makes an unwise decision. Everyone has the right to make what others may regard as unwise or eccentric decisions.  You cannot regard someone as not having the capacity to make a decision just because they do not share the same values as beliefs as you.

Principal 4 - best Interests:

When a person is determined as not having the capacity to make their own decisions, any act done or made on that person's behalf must be done so in the best interests of the person.  In doing this any decisions must be based on the consideration of all of the relevant circumstances and certain procedural steps must be taken.

You must as far as possible, permit and encourage the person to participate or to improve their ability to participate, as fully as possible in any act done for them and any decision affecting them. Where the decision relates to the life-sustaining treatment you must not be motivated by a desire to bring about the person's death.

You must consider, as much as possible, the person's past and present wishes and feelings and take in to account any relevant written statement made by them when they had the capacity to make such a statement.

You must also take into account a persons’ beliefs, and values and any other factors they would have considered if they were able to do so. If it is practical and appropriate then when assessing what a persons’ best interests are you may consult with anyone who is named by the person as someone who can be consulted in making decisions.

If you are responsible for making a decision on behalf of someone else you will be deemed as having complied under the Mental Capacity Act.

Principal 5 less restrictive option:

If you have to make a decision on behalf of a person then in doing so you must not deprive that person of their liberty.

Before any act or decision is made, you must take into account as to whether this can be achieved in a way that is less restrictive of the person's rights and freedom of action.