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Mental Capacity Act practice guidance

Part 5

How MCA helps people be involved in their own decisions

[MCA section 1; Code of Practice chapters 2 and 3]

The MCA is based on the idea that people should make decisions for themselves whenever possible.

Principle 1: A person must be assumed to have capacity unless it is established that s/he lacks capacity.
Despite someone’s age, appearance or behaviour; and despite their diagnosis or the apparently unwise decision they may make – there must always be an assumption that everyone can make their own decisions. If there is doubt about someone’s capacity this must be rigorously assessed before acting on an assumption of capacity.

Principle 2: A person is not to be treated as unable to make a decision unless all practicable steps to help him/her to do so have been taken without success.
It is the responsibility of whoever is seeking to make a decision to do everything they can to help the person to make their own decision. This would include help with communication, explaining information clearly, making sure the person is comfortable, has whatever support they want and is as well as they can be.

By introducing decision-specific capacity assessments, the MCA ensures that people are able to make whichever decisions they can. For instance, someone may not be able to make a decision about their money, but may be able to decide about medical treatment. They may not be able to decide where they should live, but may be able to decide what they wear and how they spend their time. The MCA requires separate decision-making assessments to be made for separate decisions, instead of a global decision about someone’s capacity. This means that most people can make some decisions for themselves. (Part 6: How to assess capacity)

If it has been decided that someone can’t make a specific decision for themselves they still need to be involved in the best interests decision. The best interests checklist (MCA section 4; Code of Practice 5.21- 5.24) makes sure that people are involved in decision-making. They may be able to express an opinion, say what they would like to happen or discuss details of the decision. For instance, someone may not be able to make their own decision about moving into residential care, but may then be able to comment on where they would like to live, whether they want to go somewhere where there are pets or whether they want to be able to go into a garden. A decision-maker must consider what is known about the person’s wishes. (Part 8: Best interests decisions)

Involving someone in their best interests decision is about respect. It enables people to feel valued, and to understand that there is a legal process being followed.

A decision-maker has a duty to consider as much as possible what is known about someone’s past wishes, values and opinions. Some people will make Advance Decisions and Statements; for others the decision-maker will need to find out what they can about someone’s views. This information should inform the decision-making. (Part 17: Advance Decisions and Advance Statements) (Part 8: Best interests decisions)

The MCA also gives people the right to nominate someone they would like to make decisions for them if, at a future date, they become unable to make decisions for themselves. This is by nominating a Lasting Power of Attorney. (Part 19: Lasting Power of Attorney)

When making decisions it is important to consult the person’s family and friends. If a significant decision is being made, such as a change of accommodation or serious medical treatment, and the person has no-one who can be consulted a referral must be made for an Independent Mental Capacity Advocate (IMCA) who can make sure the person’s views are fully represented. (Part 15: Independent Mental Capacity Advocates)