Mental Capacity Act 2005

The MCA Five Principles

The MCA helps to provide framework to make any decisions on behalf of someone who is deemed to lack capacity. People who lack capacity can include those who have dementia, a brain injury, suffered a stroke among others. Decisions for somebody else should be made under the five principles of the MCA which are:

• Always assume someone has capacity, unless it is proven otherwise
• Take all possible steps to ensure someone can make a decision on their own
• Do not assume lack of capacity because someone’s decision seems unwise
• Always act, or decide, for a person without capacity in their best interests
• Carefully consider options to ensure the least restrictive option is taken

If for some reason disputes arise over a decision, the matter should then be referred to the Court of Protection who will make a final decision based on the MCA and the situation at hand.

The Mental Capacity Test

To determine whether someone lacks the capacity to make their own decisions, the Mental Capacity Act sets out a test. The test will evaluate whether there is an injury or condition that is causing an impairment, or whether it is due to factors such as alcohol or drugs. When taking the test, someone must be able to:

• understand and retain information relevant to the decision
• use the information in making the decision, which might include weighing options
• communicate their decision – this doesn’t have to be verbal communication: it could include other means of communication, such as signing or writing things down.

As the scope of brain impairments and lack of capacity is so broad, it is important that these tests are carried out to ensure that there is no misinterpretation. Although formal tests are administered by professionals, you or others close to your loved one can also carry out informal tests.

It must also be recognised that there is a difference between not being able to make a decision and making an unwise decision. Everyone makes unwise decisions but this does not mean that someone lacks capacity, even if you or others do not agree.