Mental Capacity Act 2005

1. Overview

Every Day we make decisions about lots of things in our lives. The ability to make decisions is called mental capacity.

Mental Capacity Act 2005 came into force in April 2007. It is the law that empowers and protects any vulnerable person aged 16 and over who is not able to make decisions at a particular time because of illness, injury, a disability or the effects of drugs or alcohol.

The Act is intended to be enabling and supportive of people who lack capacity, not restricting or controlling of their lives.

It aims to protect people who lack capacity to make particular decisions, but also to maximise their ability to make decisions, or to participate in decision-making, as far as they are able to do so.

It makes it clear who can take decisions in which situations and how they should go about this. It enables people to plan ahead for a time when they may lack capacity.

The Act covers major decisions about someone’s property and affairs, healthcare treatment and where the person lives, as well as everyday decisions about personal care, where the person lacks capacity to make the decisions themselves.

The Act's confirms in legislation that it should be assumed that an adult (aged 16 or over) has full legal capacity to make decisions for themselves (the right to autonomy) unless it can be shown that they lack capacity to make a decision for themselves at the time the decision needs to be made.

This is known as the presumption of capacity. The Act also states that people must be given all appropriate help and support to enable them to make their own decisions or to maximise their participation in any decision making process.

The fundamental philosophy of the Act is to ensure that any decision made, or action taken, on behalf of someone who lacks the capacity to make decision or act for themselves is made in their Best Interests.

The Act is intended to assist and support people who may lack capacity and to discourage anyone who is involved in caring for someone who lacks capacity who from being overly restrictive or controlling.

The Act strengths the right to be protected from harm if they lack capacity and introduces Section 44 the offence of ill treatment or wilful neglect of someone who lacks capacity.