Introduction, Purpose and Principles of the Act
Amendment
In November 2024, this chapter was updated following a tri.x legal review of the Mental Capacity Act 2005 Resource and Practice Toolkit section ‘Understanding the Mental Capacity Act 2005’.
The Mental Capacity Act 2005 and its Code of Practice provide a comprehensive legal framework for acting and making decisions on behalf of people who lack the mental capacity to make their own decisions. This framework:
- Protects the autonomy of people who have capacity to make their own decisions; and
- Protects people who lack capacity, by ensuring that they are always involved in decisions relating to them, and that any decisions made on their behalf are made in their best interests.
Everyone working with (or caring for) any person from the age of 16 who may lack capacity must comply with the Act. People acting in a professional capacity (such as a social worker or carer) and anyone acting in a formal role (such as a Court appointed deputy or a personal with a lasting power of Attorney) must also have regard to the Code of Practice.
A person’s mental capacity is both decision specific and time specific. This means that a person may have mental capacity in respect of a decision about what clothes to wear but not have mental capacity about a more complex decision such as where to live. For some people, they have capacity at some times (such as when a mental health condition is stable) but will lack capacity at other times.
A person has Mental Capacity if they are able to make their own decision at the time when that decision needs to be made.
Section 3 of the Mental Capacity Act says that any person from the age of 16 is able to make their own decision if they can do all of the following four things:
- Understand the information that is relevant to the decision to be made;
- Retain that information long enough to be able to make the decision;
- Weigh up the information and available options when making the decision; and
- Communicate their decision.
The Mental Capacity Act starts on the premise that everyone over the age of 16 is able to make their own decision, and decisions can only be made on their behalf if it can be shown that they lack capacity to do so.
A person cannot be assumed to lack capacity to make their own decision merely based on:
- Their age;
- Their appearance;
- Their behaviour; or
- A physical or mental health condition.
The method of determining whether a person lacks capacity is the Mental Capacity Assessment. Click here to access guidance on carrying out a Mental Capacity Assessment.
There are 5 core principles (values) that underpin the Mental Capacity Act. These are defined in section 1 of the Act and set out in the table below.
The principles must be applied when considering and making a decision under the Act. If they are not clearly applied, any decision that is made on behalf of a person who lacks capacity is likely to be unlawful.
| Principle | In Practice | |
|---|---|---|
| 1 | A person must be assumed to have capacity unless it is established that they lack capacity. | Every person from the age of 16 has a right to make their own decisions if they have the capacity to do so. Practitioners and carers must assume that a person has capacity to make a particular decision at a point in time unless it can be established that they do not. |
| 2 | A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success. | People should be supported to help them make their own decisions. No conclusion should be made that a person lacks capacity to make a decision unless all practicable steps have been taken to try and help them make a decision for themselves. |
| 3 | A person is not to be treated as unable to make a decision merely because he makes an unwise decision. | A person who makes a decision that others think is unwise should not automatically be labelled as lacking the capacity to make a decision. |
| 4 | An act done or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests. | A person’s best interests must be the basis for all decisions made and actions carried out on their behalf in situations where they lack capacity to make those particular decisions for themselves. |
| 5 | Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action. | Before somebody makes a decision or acts on behalf of a person who lacks capacity to make that decision or consent to the act, they must always consider whether there is a different option that would interfere less with the person’s basic rights and freedoms. It includes considering whether there is a need to act or make a decision at all. |
Click here to access guidance about supporting people to make their own decisions under the Act.
Click here to access guidance about carrying out a Mental Capacity Assessment.
Click here to access the guidance about making decisions under Best Interests.
The Mental Capacity Act applies whenever:
- There are questions about the ability of any person (from the age of 16) to make a particular decision at a particular time; and
- The person has an impairment of, or a disturbance in the functioning of the mind or brain.
Under the Act mental capacity is both 'decision specific' and 'time specific'. This means that:
- A person cannot lawfully be found to 'lack capacity' generally; and
- The Mental Capacity Act must be applied each time that a decision needs to be made.
The Mental Capacity Act does not apply when:
- There are no concerns or doubts about the person's ability to make decisions; or
- The person does not have an impairment of, or a disturbance in the functioning of the mind or brain.
Under the Mental Capacity Act the impairment of, or disturbance in the functioning of the mind or brain can be either:
- Permanent or temporary;
- Diagnosed or undiagnosed.
| Type of impairment of disturbance | Description | Example |
|---|---|---|
| Permanent | Any impairment or disturbance that is life-long or on-going | Dementia, learning disability |
| Temporary | Any impairment or disturbance that is short term | Coma, confusion following an accident |
| Diagnosed | An impairment or disturbance caused by a condition that has been formally diagnosed by a suitably qualified medical professional | A personality disorder, an acquired brain injury |
| Undiagnosed | An impairment or disturbance caused by a condition that has either not been diagnosed, is unlikely to be diagnosed or is under investigation | Drug use Alcohol use Forgetfulness without diagnosis |
It is the responsibility of the person who has doubts about capacity to be satisfied, based upon the evidence available to them that an impairment or disturbance of the mind or brain exists.
If an impairment of, or a disturbance in the functioning of the mind or brain exists it must then be established whether or not that impairment or disturbance is the reason that a person is unable to make a decision. Only then can they properly be found to lack capacity to make a particular decision.
Under section 7 of the Mental Capacity Act, where necessary goods or service are provided to an adult who lacks capacity to consent to receiving them, the adult must pay a reasonable price for them. What constitutes necessary goods and services is based on the person's circumstances and needs.
Under Section 5 of the Act it is lawful for a Decision Maker to arrange services to meet the needs of a person who lacks capacity, so long as:
- Reasonable steps have been taken to establish that the person lacks capacity; and
- The services are in the person's Best Interests.
Under Section 8 of the Act, the Decision Maker is able to arrange payment for any services they arrange from the person's financial resources.
However, it is not lawful for a Decision Maker providing necessary care services for the person to:
- Take payment for their own services from the person's financial resource; or
- Reimburse themselves out of the person's financial resource.
The Mental Capacity Act Code of Practice provides detailed guidance to support the effective implementation of the Mental Capacity Act.
There is a duty under the Act for all persons and organisations with a responsibility for making decisions, or carrying out acts when a person lacks capacity to have regard to the code at all times, regardless of the existence of other guidance.
If it appears to a Court or Tribunal conducting any criminal or civil proceedings that a failure to comply with the code has occurred this may be taken into account in any subsequent determination they make.
Click here to access the Code of Practice for the Mental Capacity Act 2005.
Last Updated: February 5, 2024
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