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Home Mental Capacity Act

People may have difficulties making some decisions, either all or some of the time. The ability to make decisions is called mental capacity.

What is the Mental Capacity Act?

The Mental Capacity Act 2005 is a law that protects people who cannot make decisions for themselves. These may be day to day decisions such as what to wear or what to eat, or major decisions about where to live.

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The act makes it clear who can take decisions, in which situations and how they should go about this. It also allows people to plan for a time they are unable to make decisions in the future.   

People may be unable to make decisions for themselves for many reasons including:

  • learning disability
  • dementia
  • mental health
  • brain injury or stroke

What does the Act say?

  • all adults have the right to make decisions for themselves unless it is shown that they are unable to do so
  • people should be supported as much as possible to make their own decisions before anyone concludes that they cannot make their own decisions
  • people are allowed to make a decision that may seem to other people to be an unwise or strange decision
  • if a person lacks capacity any decisions or actions taken on their behalf must be taken in their best interest
  • anything done on behalf of people lacking capacity should be the least restrictive of their basic rights and freedoms

Who needs to know about the Act?

Everyone needs to know about the Act.

In particular, if you need support making decisions, are an unpaid or paid carer, a professional or want to plan for a time in the future where you may not have capacity.

If you need support making decisions

The Act makes sure the person making a decision on your behalf acts in your best interests. This means they must find out what you would have wanted.

It also allows you to name those you want to make decisions for you in the future when you might lack capacity yourself. These arrangements are called ‘Lasting Powers of Attorney’.

If you are an unpaid carer

The Act will help you understand how and when you can act on behalf of someone who lacks capacity to make decisions and the safeguards and limitations if you are doing this.

It says that you should be consulted by professionals when, for example, a doctor makes a decision about treatment for a family member who lacks capacity.

If you are a paid carer/professional

The Act provides a framework for assessing a person’s mental capacity and determining their best interests if they lack capacity to make a decision. It provides safeguards and limitations for when you are working with someone who lacks the capacity to consent to receiving care or treatment.

Who decides whether someone has capacity?

Anyone can access capacity. For everyday decisions, a relative or carer is the person most likely whereas a professional is more likely to have to formally assess when decisions are complex. For example if the decision is about treatment, it may be a doctor or for a legal decision, it may be a solicitor.  

Deprivation of Liberty Safeguards (DOLS)

These are safeguards for people who lack capacity to make decisions about their care or accommodation in a care home or hospital. If those providing their care consider they need to be deprived of their liberty in their best interest, their must seek permission to do this.

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