Mental Capacity Act

The Mental Capacity Act 2005 (MCA) came into force in 2007 and applies across England and Wales. The primary purpose of the MCA is to support and protect decision‑making within a clear legal framework.

The Act does this in two ways:

• By empowering individuals to make decisions for themselves wherever possible, and by protecting those who lack capacity through a flexible and person-centred framework which places individuals at the heart of the decision-making process.
• By enabling people to plan ahead for a time in the future when they may lack capacity to make certain decisions for themselves.

As part of the Mental Health and Justice Project, a capacity guide (opens new window) has been produced to support clinicians and social care practitioners assessing capacity. This document includes prompts, questions to ask, and relevant considerations to take into account. It is important to be aware that anyone caring for or supporting a person who may lack capacity could be involved in assessing capacity.

The Office of the Public Guardian have also produced guidance on 'Making Decisions: A Guide for People Working in Health and Social Care (opens new window).

Key messages

The MCA (2005) applies to everyone involved in the care, treatment and support of people who are:

• aged 16 and over living in England and Wales
• unable to make all or some decisions for themselves

The MCA:

• is designed to protect and restore power to those vulnerable people who lack capacity
• supports those who have capacity and choose to plan for their future - this is everyone in the general population who is over the age of 18
• is designed to empower those in health and social care to assess capacity themselves, rather than rely on expert testing
• supports wider practice - for example, application of the Deprivation of Liberty Safeguards (DoLS)

All professionals have a duty to comply with the Code of Practice (opens new window), which also provides support and guidance for less formal carers. The Act's five statutory principles are the benchmark and must underpin all acts carried out and decisions taken in relation to the Act.

The five key principles

The Act is underpinned by five key principles (Section 1, MCA). It is useful to consider the principles chronologically: principles 1 to 3 will support the process before or at the point of determining whether someone lacks capacity. Once you've decided that capacity is lacking, use principles 4 and 5 to support the decision-making process.

Principle 1: Presumption of capacity

Every adult has the right to make his or her own decisions and must be assumed to have capacity to do so unless it is proved otherwise. This means that you cannot assume that someone cannot make a decision for themselves just because they have a particular medical condition or disability.

Principle 2: Individuals are supported to make decisions

A person must be given all practicable help before anyone treats them as not being able to make their own decisions. This means you should make every effort to encourage and support people to make the decision for themselves. If lack of capacity is established, it is still important that you involve the person as far as possible in making decisions.

Principle 3: Unwise decisions

People have the right not to be treated as lacking capacity merely because they make a decision that others deem 'unwise'. Everyone has their own values, beliefs and preferences which may not be the same as those of other people.

Principle 4: Best interests

Anything done for or on behalf of a person who lacks mental capacity must be done in their best interests.

Principle 5: Less restrictive option

Someone making a decision or acting on behalf of a person who lacks capacity must consider whether it is possible to decide or act in a way that would interfere less with the person's rights and freedoms of action, or whether there is a need to decide or act at all. Any intervention should be weighed up in the particular circumstances of the case.

Learn more about mental capacity

Practitioners can access the following e-Learning courses for free:

OpenLearn (The Open University): Understanding Mental Capacity

This free Level 1 course describes the principles and criteria underpinning the assessment of mental capacity and decision-making in the UK. It explores what mental capacity - and the lack of it - means, what can be done to help someone make decisions themselves, and the steps that enable people to fairly judge who has capacity or not.

MeLearning: An Introduction to the Mental Capacity Act (2005)

This free e-learning module provides an introduction to key elements of the Mental Capacity Act, including the functional test and best-interests decision-making.

There are also a range of videos and podcasts available to support your knowledge and practice:

• Youtube: Social Care Institute of Excellence: Mental Capacity Act (Overview)
• YouTube: Social Care Institute of Excellence: Using the Mental Capacity Act
• YouTube: Social Care Institute of Excellent: Using the Key Principles of the MCA in Care Planning
• West Sussex Safeguarding Adults Board: MCA Podcast

Practitioner toolkits and further guidance

The University of Bournemouth have produced a comprehensive interactive toolkit for those working in Health and Social Care.

Practitioners can also use the Supported Decision-Making for People with Communication Difficulties toolkit.

You can also view an easy-read guide to MCA.