Key Questions
- What is mental capacity?
- How does the Mental Capacity Act support people to make decisions?
- Who is the Mental Capacity Act for?
- How is it decided if someone has mental capacity?
- When should capacity be assessed?
- Are any decisions not covered by the Mental Capacity Act?
What is mental capacity?
Mental capacity is about being able make a decision and understand what will happen as a result of making that decision.
Everyone should have the right to make choices about their own life. But sometimes injury, illness or disability can affect a person’s ability to understand difficult choices and make decisions.
Someone’s mental capacity could be affected by having:
- a brain injury;
- dementia;
- a stroke;
- a severe learning disability.
Every situation is different. In some cases, a person’s mental capacity might only be affected for a short time for example if they are unconscious after an accident, but then they get better. Or it may change from time to time, meaning that they are able to make decisions one day but not the next. Or they might be able to make day-to-day decisions about shopping and meals, but be unable to make bigger decisions, about their money or where to live.
Every person’s situation is different.
How does the Mental Capacity Act support people to make decisions?
The main purpose of the Mental Capacity Act is to keep people safe and ensure that they have the right to make their own decisions, as far as possible. It sets out a way of carrying out assessments which helps to decide if a person lacks mental capacity.
It does this in three ways:
- By making sure people make decisions for themselves wherever possible (empowering them);
- By protecting people who lack mental capacity by having a process which is flexible and can adapt to their particular needs;
- By allowing people to plan ahead for a time in the future when they might not have mental capacity any more.
The MCA helps to make sure that people make their own decisions for as long as possible.
Who is the Mental Capacity Act for?
The MCA is a law that applies to people over the age of 16.
There is a two stage test to help decide who the Mental Capacity Act applies to.
Stage 1. Does the person have an illness or disability of their mind or brain?
If so,
Stage 2. Does that mean that the person lacks the mental capacity to make a particular decision?
How is it decided if someone has mental capacity?
The Mental Capacity Act provides a set of questions to help decide if a person lacks mental capacity. If the answer is no to one or more of the following questions, the person lacks capacity.
- Can they understand information given to them?
- Can they retain that information long enough to be able to make the decision?
- Can they weigh up the information available to make the decision?
- Can they communicate their decision? This could be by talking, using sign language or even simple muscle movements such as blinking an eye or squeezing a hand.
When should capacity be assessed?
We can all have problems making decisions from time to time, but the Act covers situations when there is concern that a person cannot make a particular decision at a particular time because their mind or brain is affected by illness or a disability.
The decision may be about a day to day part of their life or a long term decision about where to live or whether to have medical treatment.
Their lack of capacity may not be a permanent condition.
Are any decisions not covered by the Mental Capacity Act?
Some decisions cannot be made for another person. This is because the decision is either so personal, or because it comes under other laws.
Decisions that cannot be made include:
- agreeing to a marriage or a civil partnership;
- agreeing to having sex;
- agreeing to the person’s child being placed for adoption;
- voting at an election.
