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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.

Planning for your future

You can appoint someone to act on your behalf if you lose capacity in the future, and it can give that person the right to make decisions regarding your:

  • property and finances
  • health and welfare.

This is known as a lasting power of attorney.

Find out more about lasting power of attorney on the Office of the Public Guardian’s website.

You can also influence decisions about your future care and treatment, including the right to refuse treatment. This is known as an advance decision or living will.

You may need to assess someone's ability to make decisions if you’re worried about their decision-making capacity.

We would always recommend that you seek a professional's input or opinion - for example a GP, social worker or solicitor - if it's a significant decision about health, welfare, property or finances. 

How is mental capacity 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 and 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 o 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 a point 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). These provide a legal framework to make sure that people’s lives are not overly restricted, and that any decisions about the way they are cared for, and where they are cared for, are a proportionate response to the risk of them coming to harm and are in their best interests.

The DoLS only apply to people who are over 18 and are in a care home or hospital. They must also lack capacity to make decisions about the arrangements for their care or treatment.

Read the mylifemycare page about mental capacity

DoLS is due to be replaced by Liberty Protection Safeguards in 2023 and a consultation is currently running around 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.