The Mental Capacity Act 2005 provides a legal framework to protect and support people who are unable to make decisions for themselves. It also offers guidance for professionals and others who need to make decisions on behalf of someone who lacks the mental capacity to do so. The Act applies to decisions about health and social care, property and financial affairs, as well as everyday decisions such as personal care, clothing and nutrition. It also enables people to plan ahead for a time when they may no longer be able to make decisions independently.
Mental capacity is both decision-specific and time-specific. A person may have capacity to make some decisions but not others, and their ability to make decisions may change over time. Mental capacity concerns situations where an individual is unable to make a decision because of an impairment or disturbance in the functioning of their mind or brain. This may be caused by:
A person is considered to lack capacity if they cannot:
Where a person lacks capacity to make a specific decision, any decision made on their behalf must be in their best interests. This includes taking into account the person’s:
The Mental Capacity Act places the individual at the centre of the decision-making process and promotes their rights, independence and involvement wherever possible.
If following a mental capacity assessment, the decision maker finds the person who lacks mental capacity does not have anyone whom can be consulted they are deemed to be ‘unbefriended’. This means they have no family or friends that can be consulted so a person called an Independent Mental Capacity Advocate (IMCA) can be appointed as part of the best interest decision making process. Information on Wolverhampton’s current Advocacy Service can be found here along with how and when to make a referral.
The Act is underpinned by five statutory principles:
Professionals must always promote and uphold the human rights of the people they support. Any restrictive intervention must be lawful, proportionate and compliant with the Human Rights Act 1998. Respecting a person’s dignity, rights and freedoms should remain central to all decision-making.
