Making your own decisions

The Mental Capacity Act 2005 is a law that protects and supports people who may have difficulty in making some of their own decisions.

The Act ensures that people given all necessary support to make every decision they are able to make, and to contribute towards any decisions made about their lives that they are unable to make themselves.

What is mental capacity?

Mental capacity is the ability to make a particular decision when it needs to be made.

Why is the Mental Capacity Act so important?

The Act empowers and protects people by:

  • Supporting people to make their own decisions, and promoting their right to do so wherever possible.
  • Providing a framework for assessing a person's capacity to make a decision and for making a decision in their best interests if they lack the capacity to make it themselves
  • Providing ways of planning for the future.

Who does the Mental Capacity Act protect?

The Mental Capacity Act protects anyone aged 16 or over who may have difficulty making a decision because of a problem with the way their mind is working, whether that problem is temporary or permanent.

It also affects anyone who provides support to someone who may have difficulty making a decision, including family, friends, volunteers and professionals. Anyone can use the Mental Capacity Act to plan for a time in the future when they may struggle to make particular decisions for themselves.

The principles of the Mental Capacity Act

  • an assumption of capacity
  • supporting people to make their own decisions
  • people have the right to make eccentric or unwise decisions
  • where someone lacks capacity staff must act in the person's best interests
  • where someone lacks capacity any action we take on their behalf must generally be the least restrictive option

Assumption of capacity

No matter who the person is, or what decision they are making, the starting point is the assumption that the person has capacity to take the decision.

Maximising decision-making capacity

The fact that someone needs a lot of support to take a decision does not mean that they lack capacity to take it. That support should be made available to them.

Unwise decisions

If someone has capacity to make a decision, they have the right to decide to do something that others view as unwise.

Best interests

If someone lacks capacity to make a decision, the person in a position to make the decision must follow the best interests' checklist.

Less restrictive alternative

How can the person's best interests be achieved in a way that restricts them as little as possible?

In what situations can someone lack capacity to make a decision?

If someone has a problem with the way their mind is working, they will lack capacity to make a decision if that problem means that they cannot do one or more of the following four things:

  • understand the information which is relevant to the decision
  • remember that information long enough to be able to make the decision
  • use and weigh up that information in order to make a decision based on what is important to them
  • communicate their decision (by any possible means, such as talking, using sign language or even simple muscle movements such as blinking an eye or squeezing a hand).

Independent Mental Capacity Advocates (IMCAs)

The Mental Capacity Act 2005 introduced Independent Mental Capacity Advocates (IMCAs). If a person lacks capacity to make the decision and they have no family or friends whom it is appropriate to consult, the NHS or Council must appoint an Independent Mental Capacity Advocate to support the person if a decision is being made about:

  • a move to accommodation (for 8 weeks or more)
  • a hospital stay (for 4 weeks or more)
  • serious medical treatment

An IMCA can also be considered during a review of your care and support or during a safeguarding enquiry.

Further information and advice:

The Social Care Institute for Excellence provides a lot of information for individuals, their families and carers, professionals and others about the IMCA process.

 


 

Useful contacts:

Richmond Council Adult Access Team
Address: Adult Social Services, Civic Centre, 44 York Street, Twickenham, TW1 3BZ
Phone: 020 8891 7971
Minicom: 18001 020 8891 7971
Email: adultsocialservices@richmond.gov.uk

KAG (IMCA and IMHA)
Phone: 020 8549 1028
Web:www.kagadvocacy.org.uk
Email: rights@kag.org.uk