Making decisions and your mental capacity
Some people have difficulties making decisions. This could be due to a learning disability, dementia, a mental health problem, a brain injury or a stroke.
What is mental capacity?
Mental capacity is your ability to make decisions. Some people have difficulties making some decisions all or some of the time.
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 helped 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 16 and applies to 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).
The information is general guidance on your rights and responsibilities. It is not legal advice. If you need support or advice on your rights or what action to take please contact a qualified adviser or solicitor.
Legal definition of mental capacity
Someone who lacks mental capacity can’t do 1 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 explains what happens when people lack capacity and are unable to make decisions. It sets out that:
- being unable to make a complex decision doesn’t mean that you can’t make straightforward decisions
- 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
- 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
- if someone has to make a decision on your behalf, they must still involve you as much as possible
For more details read Making decisions for someone else and a guide for family, friends and other unpaid carers on GOV.UK.
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 to protect them from harm but only when it is in their best interests. The safeguards are to protect people who lack mental capacity from being detained when it’s not in their best interests. To prevent arbitrary detention and to give people the right to challenge a decision.
This legislation sets out a procedure for getting permissions to deprive someone of their liberty. Without that authorisation the deprivation of liberty is 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 is only lawful with an order from the Court of Protection.
Support available if you lack capacity
Independent Mental Capacity Advocate (IMCA) Service
Independent Mental Capacity Advocates (IMCAs) service represents people who lack mental capacity to make important decisions and have no one to support them and represent their views. An IMCA is appointed to support and represent the person who is faced with decisions about:
- serious medical treatment
- long term change of residence, for example moving into a hospital or care home
- deprivation of liberty
The person could lack capacity because of dementia, a brain injury, a learning disability or mental health needs. An IMCA can be involved if a person has been abused or neglected, or is accused of abusing someone else.
- meets with the person and others involved in their care so they can speak up about their wishes, feelings, beliefs and values
- submits a report to the decision maker highlighting all of the things that are important about the decision
- can challenge the decision maker on behalf of the person who can not make their own decisions if needed.
- can help with care reviews in certain cases
Independent Mental Health Advocate (IMHA)
An Independent Mental Health Advocate (IMHA) support people who are subject to the Mental Health Act, also known as detained or ‘sectioned’ under the Act. Advocacy support can be given to people on supervised community treatment or on guardianship orders, or if their treatment is subject to certain special rules.
IMHAs help people to:
- understand the information they are given about their care or treatment
- talk to the people about their care or treatment
- access information about how the Mental Health Act applies to them
Your Voice Counts is commissioned by Newcastle City Council to provide the IMCA service in Newcastle. You can self refer to this service if you are eligible.
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.
Office of the Public Guardian register can be searched to find out if someone has an attorney or deputy acting on their behalf.
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).
Other Useful Information
- Banking for people who lack capacity to make decisions from British Bankers’ Association
- FirstStop Care Advice give advice on your rights or standards, entitlements and links to advocacy services
Last updated: September 20, 2019