Mental Capacity

What is mental capacity?

Every day, we make decisions about our lives. These decisions could be about simple things like what we eat and what we wear. They could also be about more major things like our health, our care and our finances. Our ability to make decisions is called mental capacity.

What is the Mental Capacity Act (MCA)?

The Mental Capacity Act is a new law that comes into force in 2007. It covers all sorts of situations where people aged 16 and over, who may lack capacity, are involved in decisions. It also allows for people to plan ahead if they think they may lack capacity in the future.

Who does the MCA affect?

People who may have problems making decisions include adults with a:

• learning disability
• dementia
• brain injury
• mental health problem.

The MCA also affects people who have to make decisions on behalf of those who lack capacity. This includes:

• carers
• doctors
• social workers
• advice workers.

What does the MCA do?

The main principles of the MCA are:

• assume a person has capacity unless proved otherwise
• someone cannot be treated as lacking capacity until all practical steps have been taken to help them to make their own decisions. This could include help from a speech therapist, using sign language, having information provided in different formats, or giving treatment which will improve their mental condition
• even if someone finds some decisions difficult, they may still be able to take other decisions themselves
• just because someone wants to do something which most people consider unwise, strange or eccentric, this does not mean they lack capacity
• if someone has to make a decision for someone else they should still involve that person as much as possible
• if you make a decision for someone else it must be in their best interests
• any interference in someone’s right to make decisions must take the form of the least restrictive option, and respect their basic rights and freedoms
• an Independent Mental Capacity Advocate (IMCA) can represent people if they lack capacity to make certain important decisions and there is no one else who can be consulted.

What is an Independent Mental Capacity Advocate (IMCA)?

An IMCA supports and represents people who lack capacity when there is no one else to ask and when certain serious decisions are being made. They look at the way the decision is being made but do not make the decision on behalf of the person they represent. They are independent of Nottinghamshire County Council and always aim to ensure that the best interests of the person are being considered.

The IMCA service for Nottinghamshire County Council is run by Speaking Up. They must receive a referral from the professional making the decision.   

How can I plan ahead with the MCA?

The MCA allows you to appoint someone to make decisions about your health, care and finances should you ever lack the capacity to make these decisions yourself. This is called a Lasting Power of Attorney (LPA).

You can also make a decision in advance to refuse particular medical treatment. This could come into force should you lack capacity to refuse such treatment in the future.

How does the MCA affect families and carers?

• It helps everyone to understand how and when they can act on behalf of someone who lacks capacity.
• It makes clear the safeguards and limitations if you are making a decision for someone else.
• It says that families and carers should be consulted when professionals make decisions for others eg a doctor making a decision about treatment.

What else does the MCA do?

• Sets up a new Court of Protection and a Public Guardian to safeguard people who lack capacity.
• Introduces a new criminal offence of ill treatment or wilful neglect of a person who lacks capacity.

How does the MCA affect receivers and Enduring Powers of Attorney?

If you already act as a receiver for someone who lacks capacity, or if you are acting for someone under an existing Enduring Power of Attorney, your powers are unaffected.

How can I find out more?

Download a copy of the government leaflet about the Mental Capacity Act or order a copy from our publications list.

Visit the Department for Constitutional Affairs website.

This includes copies of the above leaflet in a variety of languages as well as information aimed at unpaid carers, people who want to plan ahead and professionals working with adults who may not have capacity.