The Mental Capacity Act

The Mental Capacity Act protects the interests of vulnerable people who need to make important decisions.

At some point in our lives we are all likely to be affected by a lack of capacity to make decisions, either personally, or because someone close to us is unable to make decisions for themselves. Millions of people lose their ability to make decisions that affect their lives through illness, disabilities that affect their capacity to make decisions. Millions of people also have caring responsibilities for people who lack capacity.

Mental Capacity Act

The Mental Capacity Act provides protection for people who lack the mental capacity to make their own decisions, some or all of the time. The Act says that anyone making decisions on behalf of another person must first consider if that person would be able to make their own decision, without help.  It is intended to, amongst other things, make sure that each individual should be considered carefully.  This is because many people can make some decisions for themselves for example knowing what they want to eat whilst other decisions may be more difficult for example managing their financial affairs. 

This part of the Mental Capacity Act is known as Deprivation of Liberty Safeguards and it applies to anyone:

  • aged 18 and over
  • who suffers from a mental health issue or disability of the mind - such as dementia or a profound learning disability
  • who lacks the capacity to give informed consent to the arrangements made for their care and / or treatment and
  • for whom deprivation of liberty (within the meeting of Article 5 of the ECHR) is considered after an independent assessment to be necessary in their best interests to protect them from harm.

The safeguards cover patients in hospitals, and people in care homes registered under the Care Standards Act 2000, whether placed under public or private arrangements.

The government has produced a guide to making decisions aimed at family, friends and other unpaid carers.

You can read more about the Mental Capacity Act on the website of the Public Guardianship Office

The Care Act 

The Care Act came into force on 1 April 2015.  It says that councils must involve people in decisions made about them and their care and support.  It also sets out what happens when the council needs to take action because of concerns about someone’s safety.  The concern about safety can be because the person might be experiencing physical or mental abuse or neglect, or because someone could be taking advantage of them financially.

The Act also sets out who can appropriately support and represent someone.  It cannot, for example, be anyone who is already providing care or treatment in a professional capacity, such as the person’s GP, nurse or key worker.  The advocate should also be someone that the individual being helped approves of, if they are able to make that judgment.  If they are not able to make such a judgment, the council must be satisfied that it is in the individual’s best interests to be supported and represented by the person selected.

The person appointed as an advocate must be able to provide the support and representation that is required.  Some people who might otherwise be appropriate advocates will find it difficult to do this, for example, a family member who lives at a distance and who only has occasional contact with the person.

The Act gives councils the duty to arrange for an independent person, called an advocate, to support people who do not have anyone to represent their wishes.  This might be somebody from an organisation that provides advocacy services.