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Mental Capacity Act

The Mental Capacity Act protects people over 16, who are unable to make certain decisions for themselves. This could be due to a learning disability, mental health problems or illness. The purpose of the Mental Capacity Act is to:

  • allow adults to appoint people to manage their finances and make health and welfare decisions for them, in advance of losing mental capacity
  • allow all adults to participate in decisions about them
  • enable adults to make advance decisions about refusing future medical treatment, if they feel strongly about it
  • ensure a local authority or NHS body will appoint an independent mental capacity advocate to support someone who cannot make a decision about serious medical treatment, or about hospital, care home or residential accommodation, when there are no family or friends to be consulted
  • ensure all people's rights are respected and where they lack mental capacity, to guide their carers and professionals to making best interest decisions on their behalf
  • provide protection against legal liability for carers who have honestly and reasonably sought to act in the person's best interests
  • provide clarity and safeguards around research in relation to those who lack capacity

Under the Mental Capacity Act a person is presumed capable to make their own decisions, unless all practical steps to help them have been made without success.

To determine incapacity you will need to consider whether the person you're looking after is able to understand the issue they're making a decision about. You need to consider if they have an impairment or disturbance of their mind and inability to make decisions.

A person is unable to make a decision if they cannot:

  • understand and remember the relevant information
  • use or weigh that information against the consequences of each option
  • communicate the decision by any means (interpreter, pictures etc.)

When all steps to assist someone have been taken and it is decided that a decision should be made for them, that decision must be made in their best interests. You must consider whether there is an alternative way of making the decision which might not affect their rights and freedom.

The Mental Capacity Act sets out a checklist of things to consider when deciding what is in a person’s best interests. You should:

  • not make assumptions on the basis of age, appearance, condition or behaviour
  • consider all the relevant circumstances
  • consider whether or when the person will have capacity to make the decision
  • support the person's participation in any acts or decisions made for them
  • not make a decision about life-sustaining treatment motivated by a desire to bring about their death
  • consider the person's expressed wishes and feelings, beliefs and values
  • take into account the views of others with an interest in the person's welfare, such as their family members, their friends or carers and those appointed to act on their behalf

For more information, read the Mental Capacity Act Code of Practice or our easy read document (PDF). You can also email the DoLS team or contact them on 020 8379 1503.

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