Legislation, policies and reports

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The Mental Capacity Act 2005

The Mental Capacity Act 2005 is a law that protects people aged 16 or over who are vulnerable.

It says that every adult, whatever their disability, has a right to make their own decision wherever possible. If someone lacks capacity to make decisions on their own, they must receive any support they need to make those decisions. For example, this could be by providing information in an easy read format for someone with a learning disability.

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

When may someone not have mental capacity for decision-making

A person may not have mental capacity because of how their brain functions. This could be due to:

  • a serious brain injury
  • an illness, such as dementia
  • severe learning disabilities.

Sometimes people can recover mental capacity, such as following a severe stroke. For others, mental capacity may come and go, for example, if they have dementia.

Mental Capacity Act principles

The 5 main principles of the Mental Capacity Act are:

Always assume someone is able to make a decision until you have proof that they can not.
Try everything possible to support someone to make their own decision.
Do not assume someone does not have capacity to make a decision just because you think the decision they have made is unwise or wrong.
If you make a decision for someone because they can not make it for themself, the decision must always be in their best interests.
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 someone may have capacity to make 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 someone's ability to make decisions.

Mental capacity assessment

If we feel you need help to make decisions about your care and support needs, we’ll arrange a mental capacity assessment.

If your assessment shows that you have no one to support you, we’ll arrange for an independent mental capacity advocate (IMCA) to attend any assessments or meetings you have with us. Learn more about independent mental capacity advocates on the MIND website.