Mental Capacity Act 2005

The Five Principles

The Mental Capacity Act is built on five core principles that apply to every decision made under it:

1. 1

   Presumption of Capacity

   Every adult must be assumed to have capacity to make decisions unless it is established that they do not. You cannot assume someone lacks capacity based on their age, condition or diagnosis alone.

2. 2

   Supported Decision-Making

   All practicable steps must be taken to help a person make their own decision before concluding they lack capacity. This includes providing information in an accessible format, choosing the right time and environment, and using communication aids if needed.

3. 3

   Right to Make Unwise Decisions

   A person is not to be treated as lacking capacity merely because they make a decision that others disagree with or consider unwise. People have the right to make decisions others consider foolish.

4. 4

   Best Interests

   Any act done or decision made for a person who lacks capacity must be in their best interests — not in the interests of the carer, family, or service. The person's past and present wishes, feelings, beliefs and values must be considered.

5. 5

   Least Restrictive Option

   Before an act is done or decision made for someone who lacks capacity, regard must be had to whether the purpose can be achieved in a way that is less restrictive of the person's rights and freedom of action.

What Is Mental Capacity?

Under the MCA, a person lacks capacity in relation to a matter if, at the relevant time, they are unable to make a decision for themselves because of an impairment of, or disturbance in the functioning of, the mind or brain.

Key points:

• Capacity is decision-specific — a person may have capacity to make some decisions but not others
• Capacity is time-specific — a person may have capacity at some times but not others
• A diagnosis (such as dementia) does not automatically mean a person lacks capacity
• Temporary incapacity (e.g., due to unconsciousness, delirium, intoxication) still triggers the Act

Assessing Capacity

A capacity assessment involves two stages:

Stage 1 — the diagnostic test: Is there an impairment of, or disturbance in the functioning of, the mind or brain?

Stage 2 — the functional test: Can the person:

• Understand the information relevant to the decision?
• Retain that information long enough to make the decision?
• Use or weigh that information as part of the decision-making process?
• Communicate their decision (by any means)?

If the answer to any of the four functional questions is no, the person lacks capacity for that particular decision.

Capacity assessments are typically carried out by the person's GP, consultant, social worker, or a specialist assessor. Care providers like Ekvarta do not conduct formal capacity assessments, but carers are trained to recognise when a capacity concern should be escalated.

Best Interests Decisions

Where a person lacks capacity, decisions must be made in their best interests. The person making the decision (the "decision-maker") must:

• Consider all relevant circumstances
• Not make assumptions based on age, appearance, condition or behaviour
• Consider whether and when the person is likely to regain capacity
• Involve the person as fully as possible in the decision
• Consider the person's past and present wishes, feelings, beliefs and values
• Consult other people involved in the person's care: family, carers, attorneys, anyone interested in their welfare

The decision-maker is whoever is making the specific decision — this varies. For day-to-day care decisions, it may be a carer. For medical decisions, it is the clinician. For financial decisions, an attorney under a Lasting Power of Attorney.

Lasting Power of Attorney

A Lasting Power of Attorney (LPA) is a legal document that allows a person to appoint one or more people (attorneys) to make decisions on their behalf — either now or in the future if they lose capacity.

There are two types:

• Property and Financial Affairs LPA — covers bank accounts, property, bills, savings
• Health and Welfare LPA — covers medical treatment, care arrangements, where the person lives. Can only be used when the person lacks capacity to make the specific decision.

An LPA must be made while the person has capacity to do so. It cannot be made after capacity is lost. See our full LPA Guide.

Deprivation of Liberty Safeguards (DoLS)

The Deprivation of Liberty Safeguards (DoLS) protect people who lack capacity and who need to be deprived of their liberty in a care home or hospital in their best interests. They provide a legal framework for authorising such deprivations.

DoLS applies in registered care homes and hospitals. For other settings (private homes, supported living), the Court of Protection must be used instead. DoLS is being replaced by Liberty Protection Safeguards (LPS) — planned for implementation in due course.

Independent Mental Capacity Advocate (IMCA)

Where a person lacks capacity and has no appropriate family or friends to consult, they must be provided with an Independent Mental Capacity Advocate (IMCA) for certain significant decisions:

• Serious medical treatment decisions
• Accommodation decisions (moving into care, changing care provider)
• Adult protection cases

IMCAs are commissioned by local councils and NHS bodies. If you believe someone you care about is being denied an IMCA they are entitled to, raise this with the relevant organisation's safeguarding team or with the Care Quality Commission.