What is mental capacity?

Contents
1. Mental Capacity Act 2005 1.1. Five principles of the Act 1.2. What does it mean to 'lack capacity'? 2. Lasting powers of attorney

The Mental Capacity Act 2005 sets out what happens when people are unable to make decisions, i.e. when they lack capacity to make a particular decision. The Act came into full force on 1 October 2007 in England and Wales.

The Act is supported by a Code of Practice. All professionals, such as GPs, doctors, social workers and paid carers, must have regard to the guidance in the Code of Practice when they are supporting anyone who lacks capacity.

There are five principles of the Mental Capacity Act 2005:

1. All adults have the right to make decisions for themselves unless it is shown that they are unable to make it. This means that people may not assume that you cannot make a decision for yourself just because you have a particular medical condition or disability, or because of your age or appearance.

2. People should be supported as much as possible to make their own decision before anyone concludes that they cannot make their own decision. This may be through using different ways of communicating such as words, pictures or signs and providing information in different formats, such as tape or easy-to-read. In some cases an independent advocate may be able to help.

3. People are allowed to make a decision that may seem to other people to be an unwise or strange decision and a person should not be treated as unable to make a decision because of this.

4. If a person lacks capacity, any decisions or actions taken on their behalf must be taken in their best interests (unless they have made a relevant and valid advance decision to refuse medical treatment). It is still important to involve the person wherever possible in making the decision.

5. The final principle of the Act is to make sure that people who lack capacity are not restricted unnecessarily. So the person making the decision or taking the action must consider whether it is possible to decide or act in a way that would interfere less with the freedoms and rights of the person who lacks capacity.

If you have mental capacity, you are able to make decisions for yourself. The legal definition says that someone who lacks capacity cannot do one or more of the following four things:

• Understand information given to them.
• Retain that information long enough to be able to make a decision.
• Weigh up the information available to make a decision.
• Communicate their decision. This could be by any possible means, such as talking, using sign language or even simple muscle movements such as blinking an eye or squeezing a hand.

The Mental Capacity Act applies to situations where you may be unable to make a particular decision at a particular time, to the extent that you cannot do one or more of the points above. For example, someone with dementia may be unable to retain information long enough in order to make decisions. Or someone with a mental health problem may feel too depressed to make a decision that he or she is able to make when feeling less depressed.

In both these instances, it may be the case that the person lacks capacity to make particular decisions at particular times. This does not necessarily mean that a person lacks all capacity to make any decisions at all. A person with a learning disability may lack the capacity to make complex decisions, but this does not necessarily mean that they cannot decide what to eat, wear and do each day.

Under the Act, a new type of power, called the lasting power of attorney, replaces what used to be known as the "Enduring power of attorney". You can no longer create enduring powers of attorney. although enduring powers of attorney created before the date of the Act can still continue to be registered.