The Mental Capacity Act

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

At some point in our lives we're all likely to be affected by a lack of capacity to make decisions. This could be directly, or because someone close to us isn't able to make decisions for themselves.

Millions of people lose their ability to make decisions that affect their lives through illness or disabilities that affect their mental capacity. Millions of people also have caring duties for people who lack capacity.

Who the act is for

The act has protection for people, from 16 onwards, 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. For example, many people can make the decision themselves about what they want to eat. But other decisions may be more difficult, such as how to manage their money. The government has made a guide to making decisions aimed at family, friends and other unpaid carers.

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

Deprivation of Liberty Safeguards

Another part of the Mental Capacity Act is known as Deprivation of Liberty Safeguards. This applies to anyone aged 18 or over who:

• suffers from a mental health issue or disability of the mind - such as dementia or a profound learning disability
• lacks the capacity to give informed consent to the arrangements made for their care and/or treatment
• is considered after an independent assessment that deprivation of liberty (with the meeting of Article 5 of the European Convention on Human Rights) would be in their best interest to protect them from harm

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

Making decisions about care and support

The Care Act says that councils must involve people in decisions made about them and their care and support. It also sets out what happens if the council needs to take action because of concerns about someone’s safety. This might be because they're experiencing physical or mental abuse or neglect, or because someone is taking advantage of them financially.

The act sets out who can support and represent someone in the right way. This person can't, 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 representative should be someone the individual being helped approves of, if they're able to make that judgment. If they're not able to make the judgment, the council must be satisfied that it's in the individual’s best interests to be supported and represented by the person chosen.

The person appointed must be able to give the help and representation needed. Some people may find this hard, for example if they're 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.