Making decisions on behalf of individuals
The Mental Capacity Act 2005 (the Act) provides the legal framework for acting and making decisions on behalf of individuals who lack the mental capacity to make particular decisions for themselves. Everyone working with and/or caring for an adult who may lack capacity to make specific decisions or acting for that person, when the person lacks the capacity to make a particular decision for themselves. The same rules apply whether the decisions are life-changing events or everyday matters.
The Act's starting point is to confirm in legislation that it should be assumed that an adult (aged 16 or over) has full legal capacity to make decisions for themselves (the right to autonomy) unless it can be shown that they lack capacity to make a decision for themselves at the time the decision needs to be made. This is known as the presumption of capacity. The Act also states that people must be given all appropriate help and support to enable them to make their own decisions or to maximise their participation in any decision making process.
The underlying philosophy of the Act is to ensure that any decision made, or action taken, on behalf of someone who lacks the capacity to make decision or act for themselves is made in their Best Interests.
The Act is intended to assist and support people who may lack capacity and to discourage anyone who is involved in caring for someone who lacks capacity from being overly restrictive or controlling. But the Act also aims to balance an individual's right to make decisions for themselves with their right to be protected from harm if they lack capacity to make decisions to protect themselves.
The Act sets out a legal framework of how to act and make decisions on behalf of people who lack capacity to make specific decisions for themselves. It sets out some core principles and methods for making decisions and carrying out actions in relation to personal welfare,healthcare and financial matters affecting people who may lack capacity to make specific decisions about these issues for themselves.
There are five 'statutory principles' - the values that underpin the legal requirements in the Act. The Act is intended to be enabling and supportive of people who lack capacity, not restricting or controlling of their lives. It aims to protect people who lack capacity to make particular decisions, but also to maximise their ability to make decisions, or to participate in decision-making, as far as they are able to do so.
The five statutory principles are:
1. A person must be assumed to have capacity unless it is established that they lack capacity
2. A person is not to be treated as unable to make a decision unless all the practicable steps to help him to do so have been taken without success
3. A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
4. An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.
5. Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action.
If you are concerned about, or know of a person who maybe being Deprived of Liberty, you should raise your concern with the manager of the Care Home, or the Hospital where the person is residing. If you believe your concerns are not being appropriately addressed, you should contact the Deprivation of Liberty Safeguards (DOLS) Team:
tel: 0161 219 2199
Documents relating to the Mental Capacity Act:
- Summary of the Mental Capacity Act 2005
- Manchester's Mental Capacity Act Policy and Procedures 2012
- Guidance for Care Managers in relation to Tenancy Arrangements
- Tenancy Process Flowchart
- The Mental Capacity Act Code of Practice
- Making Decisions - Guides to the Mental Capacity Act
Independent Mental Capacity Advocacy
Some people who lack capacity need an advocate to represent their rights and defend what is in their best interests. These advocates are called Independent Mental Capacity Advocates (IMCAs). People who need decisions making for them about moving home, going into hospital, having treatment or being deprived of their liberty in order to receive the care they need might be eligible for an IMCA. Usually it is the professional involved with a person who refers them to the IMCA service. In Manchester the IMCA service is provided by the Manchester Advocacy Hub.