The Mental Capacity Act

The ‘ Mental Capacity Act’ is an important law for people with a learning disability .

It helps make sure that people who may lack capacity to make decisions on their own get the support they need to make those decisions.

Where they are not able to make their own decision, the Mental Capacity Act says a decision must be made that is in their ‘best interests’.

We have created a downloadable resource which outlines the options that are available to you to if you need to obtain information about a relative which is held by an organisation - so that you can support your relative. Visit: 'How to get access to a relatives information and records'.

The Mental Capacity Act

The Mental Capacity Act 2005 is a law that protects vulnerable people over the age of 16 around decision-making. It says that:

Every adult, whatever their disability, has the right to make their own decisions wherever possible. 

People should always support a person to make their own decisions if they can. This might mean giving them information in a format that they can understand (for example this might be easy read information for a person with a learning disability) or explaining something in a different way.

But if a decision is too big or complicated for a person to make, even with appropriate information and support, then people supporting them must make a ‘best interests’ decision for them.

The 5 main principles of the Mental Capacity Act

1. Always assume the person is able to make the decision until you have proof they are not.
2. Try everything possible to support the person make the decision themselves.
3. Do not assume the person does not have capacity to make a decision just because they make a decision that you think is unwise or wrong.
4. If you make a decision for someone who cannot make it themselves, the decision must always be in their best interests.
5. Any decisions, treatment or care for someone who lacks capacity must always follow the path that is the least restrictive of their basic rights and freedoms.

It's also important to remember that a person may have capacity for some decisions but not others, or they may not have capacity right now but may regain it in the future with support. This means all capacity decisions should be regularly reviewed to make sure they still reflect the person's ability to make decisions.

Supporting someone to make a decision

Before deciding that someone lacks the capacity to make a decision, all practical and appropriate steps must be taken to help them make the decision themselves. 

The Mental Capacity Act Code of Practice includes four main points to help someone make a decision:

1. Provide relevant information

• Does the person have all the relevant information they need to make a particular decision?
• If they have a choice, have they been given information on all the alternatives?

2. Communicate in an appropriate way

• Could information be explained or presented in a way that is easier for the person to understand (for example, by using simple language or visual aids)?
• Have different methods of communication been explored if required, including non-verbal communication?
• Could anyone else help with communication (for example, a family member, support worker , interpreter, speech and language therapist or advocate )?

3. Make the person feel at ease

• Are there particular times of day when the person’s understanding is better?
• Are there particular locations where they may feel more at ease?
• Could the decision be put off to see whether the person can make the decision at a later time when circumstances are right for them?

4. Support the person

• Can anyone else help or support the person to make choices or express a view?

Making a best interests decision

After all steps have been taken to support someone to make their own decision, if the person is assessed as lacking capacity to make that particular decision, then a ‘best interests’ decision must be made.

The person who makes the ‘best interests’ decision is called the ‘decision maker’. Who the decision maker is will depend on the situation and the type of decision.

• For most day-to-day decisions the ‘decision maker’ is likely to be the person who is supporting the person.
• If it is a decision about healthcare it will be the relevant health professional.

Whoever is the decision maker, it is important they talk with others involved with the person, and involve the person themselves as much as possible, to get a good understanding and therefore make the best decision they can.

Best interests checklist

The Mental Capacity Act sets out a best interests checklist, which must be followed when making a best interests decision:

1. Will the person regain capacity?
2. Involve the person.
3. Consult all relevant people.
4. Consider all the information.
5. Do not make any assumptions.
6. Consider past, present and future wishes.
7. Always pick the very least restrictive option.

The full checklist is in the Mental Capacity Act Code of Practice PD.

Involve the person you are making a best interests decision for

When a best interests decision is being made, the person must still be involved as much as possible.

Mencap and BILD’s Involve Me resources offer some creative ways to ensure people remain at the heart of decision making. There are guides and a video to show how the preferences of people with PMLD can be captured and used to influence decisions about their lives, even if they lack capacity to make the decision themselves.

Independent Mental Capacity Advocate (IMCA)

If a person has no family or friends for the decision-maker to ask about important decisions like serious medical treatment or changes of accommodation, then an Independent Mental Capacity Advocate must represent the person’s views.

They are a legal safeguard for people who lack the capacity to make big decisions. Read more on Independent Mental Capacity Advocates.