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About mental capacity

Every day we make decisions and choices about our lives; the ability to make these decisions is called mental capacity.

When mental capacity is affected

There are many reasons why people have difficulty in making decisions. Mental capacity does not mean you're just indecisive or do not have all the information you need to make decisions. It means that you could find it difficult to make decisions because you have:

  • learning disability
  • mental health problem
  • head injury or medical condition that affects the brain.

Over time, or with help, some people’s ability to make decisions can improve, and it’s important that people are supported to make decision for themselves.

How mental capacity is assessed

If you’re worried about someone’s decision making capacity, it's important to consider whether the person can:

  • understand the information relevant to the decision
  • remember the information for long enough to make the decision
  • weigh-up information before making decisions
  • communicate the decision.

Acting on someone’s behalf

If you're making decisions on behalf of someone who cannot make their own decisions, you have a responsibility to make sure that you represent them fairly. You must:

  • involve them as much as possible
  • act in their best interests
  • consider their wishes, feelings, beliefs and values
  • consider which option is less restrictive of their rights and freedoms.

If a person has no one other than professionals to consult with and support them to make decisions, sometimes an Independent Mental Capacity Advocate is appointed to represent their wishes, feelings, beliefs and values.

The Mental Capacity Act Code of Practice has lots of helpful guidance about:

  • who the decision-maker is
  • what best interests means
  • the lawful use of restrictions and restraint.

It is important that if you are making decisions on behalf of someone else, that you follow the Mental Capacity Act to ensure that you and the person are fully protected under the law.

The Mental Capacity Act (2005)

The law tells us what to do when people are unable to make decisions for themselves as well as how to plan for the future should we become unable to make decisions.

The Mental Capacity Act is legislation to help the vulnerable. It:

  • sets out the rights of people to make their own decisions
  • explains the responsibilities of others to support this
  • sets out how to assess capacity and make decisions lawfully for people when they can not make them for themselves
  • can also help you plan for your future.

The Mental Capacity Act states that you are entitled to make your own decisions, unless it’s shown that you cannot because of ‘an impairment in the functioning of the mind or brain.’

You should have support to make your own decisions for as long as you are able and be involved as much as possible even when you cannot make the final decision yourself.

Just because other people might think your decision is risky, silly or unwise for some reason, does not automatically mean you lack capacity to make the decision.

The Court of Protection

This court has the power to make legal decisions and judgments under the Mental Capacity Act. Decisions the courts can make include:

  • the final decision about whether a person lacks capacity
  • difficult or complex disputes about what’s in a person’s best interests
  • appointing deputies when a person lacks capacity to appoint a lasting power of attorney for property and finances and/or health and welfare
  • if there’s a proposal that would restrict the person’s contact with others - this may need to be agreed by the Court of Protection
  • whether someone living in the community is being deprived of their liberty and if this is lawful.

Deprivation of Liberty Safeguards

The Mental Capacity Act was amended in 2007 to incorporate the Deprivation of Liberty Safeguards (DoLS)s. These provide a legal framework to make sure that:

  • people’s lives are not overly restricted
  • decisions about the way and where they are cared for are a proportionate response to the risk
  • decisions are in the cared for person's best interests.

Liberty Protection Safeguards (from 2023)

DoLS is due to be replaced by Liberty Protection Safeguards in 2023 and a consultation was held on the topic of a new Mental Capacity Act code of practice to include Liberty Protection Safeguards changes.

To view the documents in relation to this consultation please visit the government website.