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Making Decisions (Mental Capacity)

The information on this website is for general guidance on your rights and responsibilities and is not legal advice. If you need more details on your rights, or legal advice about what action to take, please contact an adviser or solicitor.

What is Mental Capacity?

Mental capacity is the ability to make decisions. Some people may have difficulties making some decisions all or some of the time. This could be due to a learning disability, dementia, a mental health problem, a brain injury or a stroke.

The Mental Capacity Act 2005 came into force in England and Wales in 2007 and aims to ensure that people who lack mental capacity are given as much help as possible to make decisions and are enabled to participate in decisions made on their behalf. It will also ensure that any decisions are made in the person’s best interests.

The Mental Capacity Act 2005 affects anyone over the age of 16 years old and will apply in all sorts of decisions, for example financial matters, social care or medical treatment. It also covers the legal arrangements to plan ahead for a time when you may lack capacity to make certain decisions for yourself. This was previously referred to as an Enduring Power of Attorney and is now known as a Lasting Power of Attorney (LPA).

Legal definition of mental capacity

The legal definition says that someone who lacks mental capacity can’t do one or more of the following:

  • Understand information given to them to make a particular decision
  • Retain that information long enough to be able to make the decision
  • Use or weigh up that information to make the decision
  • Communicate their decision

A person’s mental capacity can be assessed by a relative or carer, but a formal assessment by a professional, such as a doctor or solicitor, may need to be made if the decisions are more complex. All professionals and paid carers must ‘have regard to’ a Code of Practice when supporting someone who lacks mental capacity.

The Mental Capacity Act 2005

The Mental Capacity Act sets out what happens when people lack capacity and are unable to make decisions. It explains:

  • That being unable to make a complex decision doesn’t mean that you can’t make straightforward decisions.
  • That being unable to make a decision at a certain time doesn’t necessarily mean that you will be unable to make it at a later time or date.
  • That someone can’t decide whether you lack capacity, or make assumptions about what is in your best interests, merely on the basis of your age, appearance, condition or behaviour.
  • That if someone has to make a decision on your behalf, they must still involve you as much as possible.

For more detailed information you may find it helpful to read the government website information on Making decisions for someone elseThere is also A guide for family, friends and other unpaid carers.

Deprivation of Liberty Safeguards

The Deprivation of Liberty Safeguards were introduced to the Mental Capacity Act 2005 in April 2009.

When someone lacks mental capacity to consent to care or treatment, it is sometimes necessary to deprive them of their liberty in their best interests to protect them from harm. The safeguards are intended to protect people who lack mental capacity from being detained when this is not in their best interests – to prevent arbitrary detention and to give people the right to challenge a decision.

The legislation sets out a procedure for obtaining authorisation to deprive someone of their liberty. Without that authorisation the deprivation of liberty will be unlawful. The safeguards apply to all care home residents – both publicly and privately funded – and people in hospitals. For people not in a care home or hospital, deprivation of liberty will only be lawful with an order from the Court of Protection.

More information on the Mental Health Act and Deprivation of Liberty Safeguards can be found on Mind’s website.

You may also find it useful to read Age UK’s factsheet The Deprivation of Liberty Safeguards.

Independent Mental Capacity Advocate (IMCA) Service

The IMCA Service was introduced in April 2007 to represent people who lack the mental capacity to make important decisions, and who have no one else to support them and represent their views. Independent Mental Capacity Advocates (IMCAs) will only need to be involved in the following specific circumstances:

  • if the decision is about serious medical treatment; or
  • if the decision is about a long-term change of residence, for example moving into a hospital or care home.

Planning ahead

The Mental Capacity Act 2005 also explains how you can plan ahead for a time when you may lack mental capacity. This is done by creating a Lasting Power of Attorney (LPA). LPAs came into force on 1 October 2007 and have replaced the existing Enduring Power of Attorney (EPA), although EPAs made before this time can still be used.

An LPA allows you to appoint someone to make decisions on your behalf should you ever need them to. This includes decisions about finances, property, health and personal welfare. You can read more about this in our section on Power of Attorney.

The Act will also enable you to make an advance decision (previously known as an advance directive) or a ‘living will’. This means that you can make the decision to refuse certain types of medical treatment should you lack the capacity to decide this in the future. For further information, see our section on Advance decisions (living wills).

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Last updated: October 8, 2018

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