When we work with you and provide support, we want you to have as much choice and control as possible.
The Mental Capacity Act (2005) gives the legal framework which must be followed when supporting people who cannot make decisions for themselves, including how we should work in the best interests of those individuals. This page gives a basic overview of the Act.
You may find the easy read information produced by Care England useful.
What is mental capacity?
When we talk about mental capacity we’re referring to a person’s ability to make a specific decision for themselves.
If someone is assessed as lacking capacity to make that decision, the law allows others to make the decision on their behalf (excluding certain decisionss such as voting, marriage, sexual relations, or illegal acts).
The Mental Capacity Act is about protecting and empowering people, not about controlling and restricting them.
There are several principles which the law says must be followed when considering capacity.
Presumption of capacity
We must assume someone has capacity to make a decision unless we can prove otherwise. The person does not have to prove they have capacity.
Before treating someone as unable to make a decision, they must be given all practicable support to make that decision for themselves. This includes presenting them with accessible information about the decision to be made.
We cannot treat someone as lacking capacity if they are simply making a choice which we feel is unwise or eccentric. Everyone has their own values which much be respected.
If someone is assessed as lacking capacity to make a decision, any decision made on their behalf must be in their best interests. Decisions should not be made based on what is best for other parties.
If a best interests decision is being made, it should interfere with the person’s rights and freedoms as little as possible.
There is a Code of Practice which people applying the Mental Capacity Act should use to help guide them.
Other important factors
Mental capacity is time specific. We cannot assume that someone who is assessed as lacking capacity today will lack capacity forever.
It is also decision specific. This means we cannot assume someone lacks capacity to make every decision. People may be able to make many decisions for themselves but lack capacity to make others.
Capacity should not be assessed before practicable steps have been taken to support the person to make the decision for themselves. This includes giving them information, communicating in a way they are best able to understand, and involving other people who may be appropriate to help.
If someone is assessed as having capacity, we should still offer them support and advice.
How capacity is assessed
If the decision to be made relates to the person’s care and support, a social worker or social care practitioner will assess their capacity. If it relates to the provision of home equipment then an occupational therapist will complete the assessment.
Anyone can assess capacity, however the person assessing capacity must have an understanding of the decision being made and options available. A good example of this is medical treatment, which must be assessed by a medical professional.
When assessing capacity, the assessor will consider whether the person can undertand, retain, weigh and use, and communicate information relevant to the decision. If any one of these aspects is assessed as lacking, a conclusion can be drawn that the person lacks capacity.
Importantly, any lack of capacity must be because of an impairment or disturbance in the person’s mind or brain. For example, this could be a learning disability or memory loss.
If someone lacks capacity, the people involved in their day-to-day life should all consider what they feel is in the person’s best interests. It may be helpful for them to have a meeting to discuss it, although this is not always needed particularly if the decision is clear and everyone agrees.
We should still consider the person’s wishes and feelings. These will help guide what action is taken, although it will not always be appropriate to follow their wishes precisely.
If those involved with the person do not agree on what is in the person’s best interests, we can apply to the Court of Protection to make the decision. We should only do this after we have tried everything we can to reach an agreement about what is best.
The Court of Protection
There is a specialist court in place to deal with matters relating to mental capacity. When there is disagreement about what is best for someone, an application can be made for the Court of Protection to consider the matter. We can also ask the court to help make decisions when there are complex issues, for example uncertainly about whether the person lacks capacity or not.
In the vast majority of cases it will not be necessary for the court to be involved. When a case does go to court, those involved will be able to share their views with the judge who will make the final decision.
If someone has been assessed as lacking capacity they may benefit from an having an Independent Mental Capacity Advocate (IMCA) if they do not have any family or friends able to support them.
An IMCA can also be involved if there are safeguarding concerns being investigated.
An IMCA will ensure the person’s views are considered and acts as an independent party to ensure the Mental Capacity Act is being followed.
Warwickshire has a commissioned provider who provide IMCA services. As part of the best interests process your social care practitioner will consider whether an IMCA is required and make a referral.
Power of Attorney and deputies
People who lack capacity to make a decision may have someone specific appointed by the courts to make the decision for them.
A person can appoint someone to hold a Lasting Power of Attorney (LPA) before they lose capacity. The attorney will be able to then make decisions if the person loses capacity in the future. An application must be made to the court to have a Power of Attorney in place.
A deputy is appointed by the court after a person loses capacity. They will then make decisions on behalf of the person. Again a court application is required to have this in place.
It is possible for an attorney or deputy to be appointed to make decisions regarding ‘health and welfare’ and / or ‘finances’ . This will determine the type of decisions they are able to make and they must do so in the person’s best interests.
The local authority cannot provide legal advice about Power of Attorney or deputyship.
Deprivation of Liberty Safeguards (DoLS)
There may be situations where a best interests decision is required which impacts on the person’s rights and freedoms. All efforts should be made to minimise such restrictions, however this is not always possible when we need to keep people safe.
Someone is being restricted if they are either:
- under constant supervision and control
- not free to leave their accommodation
A ‘deprivation of liberty’ can take place within a formal care setting, such as a residential home or hospital, or within a community setting including the person’s own home. This does not mean someone is doing something wrong: the ‘Deprivation of Liberty Safeguards’ are in place to make sure this is done in the right way and for the right reasons.
For people living in the community, an application needs to be made to the Court of Protection. Where this is required your allocated worker will arrange it.
If you or the person you are enquiring about has an allocated worker they will be able to give you more information and talk you through the process of a Mental Capacity assessment.
Otherwise, you can contact adult social care for more information. Please also let us know if you need any of the above information in a different format.