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Mental Capacity Act

The Mental Capacity Act is designed to protect people who can't make decisions for themselves or lack the mental capacity to do so. This could be due to a mental health condition, a severe learning disability, a brain injury, a stroke or unconsciousness due to an anaesthetic or sudden accident.

The act's purpose is:

  • To allow adults to make as many decisions as they can for themselves.
  • To enable adults to make advance decisions about whether they would like future medical treatment.
  • To allow adults to appoint, in advance of losing mental capacity, another person to make decisions about personal welfare or property on their behalf at a future date.
  • To allow decisions concerning personal welfare or property and affairs to be made in the best interests of adults when they have not made any future plans and cannot make a decision at the time.
  • To ensure an NHS body or local authority will appoint an independent mental capacity advocate to support someone who cannot make a decision about serious medical treatment, or about hospital, care home or residential accommodation, when there are no family or friends to be consulted.
  • To provide protection against legal liability for carers who have honestly and reasonably sought to act in the person’s best interests.
  • To provide clarity and safeguards around research in relation to those who lack capacity.

About mental capacity

Under the Mental Capacity Act a person is presumed to make their own decisions “unless all practical steps to help him (or her) to make a decision have been taken without success”.

Every person should be presumed to be able to make their own decisions. You can only take a decision for someone else if all practical steps to help them to make a decision have been taken without success. For example, someone might have the capacity to walk into a shop and buy a CD but not to go into an estate agent and purchase a property.

Incapacity is not based on the ability to make a wise or sensible decision.

How 'mental incapacity' is determined

To determine incapacity you will need to consider whether the person you're looking after is able to understand the particular issue that they're making a decision about. You need to consider if they have:

  • an impairment or disturbance in the functioning of the mind or brain, and
  • an inability to make decisions.

A person is unable to make a decision if they cannot:

  • understand the information relevant to the decision,
  • retain that information,
  • use or weigh that information as part of the process of making the decision, or
  • communicate the decision.

Making decisions for someone

If, having taken all practical steps to assist someone, it is concluded that a decision should be made for them, that decision must be made in that person’s best interests. You must also consider whether there's another way of making the decision which might not affect the person’s rights and freedom of action as much (known as the 'least restrictive alternative' principle).

Best interests

The Mental Capacity Act sets out a checklist of things to consider when deciding what's in a person’s best interests. You should:

  • Not make assumptions on the basis of age, appearance, condition or behaviour.
  • Consider all the relevant circumstances.
  • Consider whether or when the person will have capacity to make the decision.
  • Support the person’s participation in any acts or decisions made for them.
  • Not make a decision about life-sustaining treatment “motivated by a desire to bring about his (or her) death”.
  • Consider the person’s expressed wishes and feelings, beliefs and values.
  • Take into account the views of others with an interest in the person’s welfare, their carers and those appointed to act on their behalf.

See Applying the Mental Capacity Act for information about the Court of Protection, court-appointed deputies, the Public Guardian and independent mental health advocates. See Advance decisions to find out about how someone can make their wishes about life-saving treatment known in advance.

If you have any questions about caring and the Mental Capacity Act, call the Carers Direct helpline on 0300 123 1053 or send an enquiry to Carers Direct by email.

Attitudes to mental health

Four people who've had mental health issues, including bipolar disorder, paranoid schizophrenia and personality disorder, talk about the negative reactions they faced and how they overcame them.

Media last reviewed: 29/08/2013

Next review due: 29/08/2015

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The 3 comments posted are personal views. Any information they give has not been checked and may not be accurate.

persistence said on 24 April 2014

The information on the MCA2005 2005 code of practice is misleading, there is no mention of those placed into the COP for ;Property ad Finance

My son was placed there not on his Mental Capacity, purely because the LA Appointee at the time said they had saved more than £5000 of his welfare Benefits (his only income) by giving him £100 per week to live on, paying all his bills, food, and cleaner for one whole year, by he time it got to court they had saved £15000 out of his only income Welfare Benefits.

For someone to be mentally incapacitated to manage money, and then be given £100 per week to pay all his own bills, seems a bit bizarre don't you think.
Pearl

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Mr K L from Kings Heath said on 14 February 2014

Firstly, my heartfelt thoughts to 'myexperience said on 29 November 2013 ....so sad!

Now ...I suffer with Poor Mental Health, I am however an intelligent human being with what I feel are accurate and legitimate serious concerns based on 'tangible' personal experiences as what is termed a 'service user'.

Fact: Support for people with Poor Mental Health (e.g. Depression etc) is at best patchy, poor, badly delivered and hard to locate/access, and at worst non-existent!

In a word, terrible....and in two words, really terrible!

Be warned, agency rhetoric, glossy leaflets and nice websites (i.e. NHS, PALS, Healthy Minds etc etc etc are) likely to make your Poor Health worse not better as you try to navigate through the deceit and no-existent or sub-standard so called support for SU's.

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myexperience said on 29 November 2013

We 'honestly and reasonably sought to act in the person’s best interests'. He was our son so why would we not? As '3rd parties' we were not permitted to be involved in the matter.

Our son did not get the attention he needed -the opposite in fact- and the Solihull GP lied about it after our son died. Neither the ombudsman or the GMC were concerned to investigate it all to find out what went wrong, or why our son's life was needlessly lost. They said it was all normal and didn't meet the criteria for investigation. There were no 'lessons to be learnt', apparently. A so-called reviewer at the ombudsman's office actually lied about looking into it: others just put down the phone when I pressed them for a reason for that.

I provided plenty of good evidence which could be corroborated by medical records but I might as well have been talking to a brick wall because they didn't want to check it. The case was marked closed and I was told evidence made no difference. The requirements of the Mental Capacity Act was never considered by GP or ombudsman - it was ignored from day one.

I have since discovered that this is happening all the time across the country with more lives lost of those who needed compassionate and educated help. No wonder the ombudsman thought it was normal. It was a waste of time asking.

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Page last reviewed: 13/06/2012

Next review due: 13/06/2014

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Media last reviewed: 17/07/2013

Next review due: 17/07/2015