The Mental Capacity Act 2005

The Mental Capacity Act 2005 (‘MCA’) is a law that applies to individuals aged 16 and over. It is designed to protect and empower people who lack the mental capacity (often referred to simply as ‘capacity’) to make their own decisions about their health, welfare, or finances. But what does the term capacity actually mean?


Who lacks capacity?

Having capacity means having the mental ability to make your own decision. The MCA works on the principle that everyone has capacity, until a person is found to lack capacity. A person may be considered as unable to make a decision (ie. lacking capacity) if they:

  1. Cannot understand information given to them about the decision; and/or
  2. Cannot remember that information for long enough to be able to make a decision; and/or
  3. Cannot weigh up and use that information to make a decision; and/or
  4. Cannot communicate their decision (by any means of communication).

A lack of capacity could be due, for example, to a learning disability, dementia, a mental health problem, an illness that causes confusion, a brain injury, a stroke, or alcohol misuse.

It cannot be assumed that a person lacks capacity simply because of their age, disability, illness, or behaviour.


Capacity is decision/issue specific

The law states that a person’s capacity has to be judged in relation to the decision they are having to make. If a person has been deemed to lack capacity in relation to one decision, it does not automatically mean that the person will lack capacity for other decisions. For example, a person may lack capacity to make big decisions relating to medical treatment but that does not mean that they lack capacity to make everyday decisions such as what to eat.


Capacity is time specific

Similarly to the principle of capacity being issue specific, capacity is also time specific. This means that a person’s capacity to make a decision has to be judged at the time they need to make that decision. For example, if a person is deemed to lack capacity to make a decision, it does not mean that that person will not be able to make a similar decision in the future. For example, if a person is deemed to lack capacity to make a decision as a consequence of suffering from a urinary tract infection (‘UTI’), it does not mean that that person will not have capacity to make a similar decision in the future, once they are no longer suffering from a UTI.


Supporting decision-making

Before a person is deemed to lack capacity, all appropriate steps must be taken to try and enable the person to make a decision for themselves. This includes ensuring that the person has been given all relevant information that they need, information being communicated or presented in a way that is easier for the person to understand (for example, visual aids), and, where possible, delaying the decision until a time when they person may be able to better understand.


Unwise decisions

An important principle of the MCA is that, just because a person is making an unwise decision, it does not mean that they lack capacity. For example, if a person with diabetes continually chooses to eat foods that medical professionals have told them they should not eat, it does not mean that they lack capacity; they could just be making unwise decisions.


When someone lacks capacity

The MCA says that, if a person is deemed to lack capacity, decisions made on their behalf must be in the person’s best interests and be the least restrictive option available to them whilst still meeting their needs.


How can Conroys Solicitors help?

Conroys Solicitors LLP specialise in all aspects of mental capacity law. If you would like to book a free 30 minute consultation with one of our lawyers, please telephone our office on 01872 272 457.