Mental Capacity Act 2005

The Mental Capacity Act (MCA) 2005 provides a legal framework to empower and protect people aged 16 and over who lack, or may lack mental capacity to make certain decisions for themselves because of illness, brain injury, a learning disability, or mental health problems.

The Act introduced a number of rights for people who have difficulty making decisions.  It also introduced some responsibilities for people who work or care for others and provides clear guidelines about:

• how to help someone who may lack capacity to make their own decisions
• what to do if the person is unable to make a particular decision
• who can take decisions for those who may lack mental capacity
• what type of situations and decisions the Act applies
• legal requirements for those who are taking decisions on behalf of someone who lacks capacity

Advocacy services are available enable someone to make informed choices about their own health and social care.  Find out more about advocacy on Camden Care Choices.

The Mental Capacity Act is based on five principles:

1. Everyone is presumed to have mental capacity until it is established that they do not
2. No-one is to be judged to lack capacity until all reasonable steps have been taken to support that person to make a decision, and these have been unsuccessful
3. A person cannot be judged to be unable to make a decision simply because that decision appears unwise
4. If a person cannot make a decision, then any decision made on her/his behalf must be made in her/his best interests
5. When making a best interests decision, the least restrictive option – the choice that interferes the least with a person’s freedoms – is the one which must be chosen

The Act is relevant to everyone who makes decisions on behalf of people who lacks capacity including family, friends or professionals.  It also introduced:

• a formal test of capacity
• a Code of Practice for the operation of the Act
• new types of legal authority for the management of a person’s financial and welfare circumstances
• new criminal offences of "ill-treatment" and "wilful neglect" with a possible sentence of up to five years in prison

A person is regarded as having mental capacity if they are able to understand, retain and weigh up relevant information relating to the specific decisions. In addition, they must be able to communicate their decision.

The Mental Capacity Act also makes provision for adults who have capacity to make plans for the future when they may lack capacity. 

Useful resources