If you have an illness or condition such as dementia or a learning disability, or you suffer a severe head injury, the Mental Capacity Act protects your right to make your own decisions wherever possible. The act also says that when you need assistance, the people helping you must involve you as much as possible and protect your rights.

Mental Capacity Act

The key principle of the Mental Capacity Act is that you are presumed to have the capacity to make all your own decisions

What does the Mental Capacity Act cover?

The Mental Capacity Act, which came into force in 2007, is about your ability to make decisions; in other words, your 'mental capacity'. It covers adults of all ages in England and Wales who may find it difficult to decide on important matters, such as financial affairs and moving home, and also about everyday activities such as taking care of yourself.

You may find it hard to make decisions if you have:

  • An illness such as dementia or a mental health problem
  • A learning disability
  • An injury to your brain, or the effects of a stroke

The key principle of the Mental Capacity Act is that you are presumed to have the capacity to make all your own decisions. It is only when others are concerned that you may not be able to cope with certain matters, or that your health and safety are at risk, that the act may be used to help you, but only in your best interests. 

Another vital principle of the Mental Capacity Act is that each decision needs to be judged separately; the act can't be applied just once to cover all the decisions you may make. You may be able to make day-to-day decisions such as what to eat or wear, but not be able to decide on more complex issues such as medical treatment, or where to live. The important thing is that a judgement needs to be made about your capacity to make each separate decision.

The act is primarily concerned with your everyday care and does not include certain personal decisions (such as getting married or voting) or those covered by other laws (such as treatment under the Mental Health Act).

Top tips

  • Although the Mental Capacity Act protects your best interests, you may wish to seek legal advice when you can
  • Take time to learn more about the act for yourself or people you are caring for – it will help when discussing options with care providers
  • As well as the resources provided by SCIE, a good reference is the Code of Practice on the act, which includes many short case studies (see link below to Understanding the Mental Capacity Act)

How can the act affect my care?

The Mental Capacity Act applies to anyone who is responsible for your care in both informal and formal roles, and so can apply in a wide range of situations and wherever you may be living. Those who should follow the act, and its associated Code of Practice, include:

Family and carers

People who have Lasting Power of Attorney for your affairs, often a family member

Health and social care workers

Care home workers

Situations where decision-making by others may apply could be throughout your adult life, if say you have a learning disability or autism. Alternatively, decision-making by others may be a more gradual process if you develop dementia when you get older. An emergency, such as a road accident or a stroke that reduces your immediate mental capacity, may also apply.

You can plan ahead if you wish, by granting say a close relative Lasting Power of Attorney while you can still make all your own decisions. You also have the right to decide in advance not to have certain medical treatment should you be unable to decide for yourself if and when that time comes.

The act also makes it a criminal offence for people to neglect your care or ill-treat you.

Can I have some specific examples?

Everyone's situation is different, but there are some typical cases that the Mental Capacity Act is designed for:

  • When you become less able to handle major financial decisions, such as spending a large sum on a home repair, which can happen when you develop dementia
  • If you have a serious accident that makes you unable to understand or agree to medical treatment that would be in your best interests
  • Deciding not to have prolonged life-extending treatment during end of life care if you have made an advance decision on how you would like to be cared for in hospital or a care home
  • Helping young people with a learning disability to live independently
  • As far as possible, finding out your wishes for events such as moving home, if you find it hard to communicate

In all cases, in order to be covered by the act, people making decisions for you should make an assessment that there is a reason why your mental capacity is affected, and that you are unable to make the particular decision in question.

What if I'm on my own?

The Mental Capacity Act covers situations where you have no close family members or friends, or where there may be conflict in your immediate family. They include:

  • The Court of Protection, which deals with decisions on healthcare and welfare as well as financial matters for those who lack capacity
  • People you appoint to have Lasting Power of Attorney, who could be a solicitor as well as a family member. These trusted individuals can also be responsible for health and welfare concerns
  • The Independent Mental Capacity Advocate service, which is specifically designed to support and represent you if you have no one else to support you, and if you need help with decisions about events such as medical treatment, or a move to a care home

The Office of the Public Guardian (see link below) is responsible for registering Lasting Powers of Attorney and for supervising deputies (those who act on your behalf) appointed by the Court of Protection.

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