Mental Capacity Act 2005
The law that protects people who may not be able to make decisions for themselves — and sets out how decisions must be made on their behalf.
Key Facts
- A person is assumed to have capacity unless proven otherwise
- Capacity is decision-specific and time-specific — it can change
- People must be supported to make their own decisions before capacity is assessed
- Any decision made for someone must be in their best interests
- The least restrictive option must always be chosen
- Applies in England and Wales
The Five Key Principles
The Mental Capacity Act is built on five principles: (1) Assume capacity unless there is evidence otherwise. (2) Take all practicable steps to help someone make their own decision before concluding they cannot. (3) An unwise decision does not mean a person lacks capacity. (4) Any act or decision made for someone lacking capacity must be in their best interests. (5) Choose the least restrictive option.
How Is Capacity Assessed?
Capacity is assessed for a specific decision at a specific time — not globally. Someone may have capacity to decide what to eat but not capacity to manage their finances. A two-stage test is used: first, is there an impairment or disturbance in the functioning of the mind or brain? Second, does this impairment mean the person cannot understand, retain, weigh up or communicate information about the decision?
Deprivation of Liberty Safeguards (DoLS)
If a person who lacks capacity is being kept in a care home or hospital in a way that deprives them of their liberty — even for their own safety — there must be an authorisation called a DoLS. Without it, the deprivation is unlawful. The DoLS system is being replaced by Liberty Protection Safeguards (LPS) — but this transition has been significantly delayed.