Mental Capacity and the Law
Who is this leaflet for?
This is for anyone who wants to know more
- the legal protection for people
who cannot make decisions for themselves.
It focusses on the 2005 Mental Capacity
Act for England and Wales. Scotland has a similar Act called the
Adults with Incapacity Act (2008).
Every day we make decisions about our health. We decide whether
to smoke or not, whether to exercise or not – and what treatments
we are prepared to have.
We usually make a decision because it seems
to be the right thing for us at that time, “in our own best
interest”. Most adults know what is right for them and can make
their own decisions. This right is protected by law.
What is capacity?
You have capacity when you can make a decision for yourself
without someone else having to decide for you.
If a physical or mental illness affects
your thinking so that:
- you can't make a decision for
- you would make a decision that you would
not make if you were well.
You would be seen to lack capacity to make
Can capacity vary?
With the decision to be made ….
Even if your thinking is affected, you may
still be able to make simple decisions, but not more complicated
ones. If you have dementia and can't remember new information, you
may be able to decide about a place you'd like to visit, but may
not be able to decide whether to have a hip operation.
With the timing of the
Capacity can also change with time
– because your state of mind can change with time. An illness
that interferes with your judgement can get better – at least for a
while. An older person can become confused with a chest
infection, but their normal state of mind can return when the
infection is treated.
Capacity in healthcare
Normally you can make your own decision about whether to have or
not have a treatment. You decide what’s best for you.
You may disagree with your doctor, perhaps
for reasons that the doctor will find hard to understand. For
example, a Jehovah’s Witness may refuse a blood transfusion because
it is against their religion. But, if you have capacity, the doctor
has to accept your decision because you have made it in what you
see as your best interest.
It is harder when a decision needs to be
made and you lack the capacity to make that decision. An infection,
a mental illness or dementia may cloud your judgement. The Mental
Capacity Act gives guidance about what to do in these
Mental Capacity Act 2005 (MCA)
This Act aims to protect people lacking capacity from having
decisions made for them that are not in their best
interests. This can happen when:
- A decision is made by someone who does not
know the person well. For example, a doctor might start a treatment
that you would normally refuse.
- A person exploits the patient with
There are 5 principles:
You are assumed to have capacity.
- Unless the tests described below show that
they do not.
Your best interests come first.
- Any decision must be as close as possible
to what the person would have normally wanted for him or
Help to make a decision.
- As far as possible, you should be helped
to make the decision yoursefl. A decision can be postponed or
family members can support you while you consider the
Freedom to make unwise decisions.
- If you have the capacity to make a
particular decision, you have the right to make a decision that
others might see as unwise.
Least restrictive action.
- The decision made should be the least
disturbing and least dangerous.
How is capacity tested?
1) Do you understand the
To make a decision about a treatment, you
need to understand the relevant information - the risks and
benefits of the treatment, any other treatments available and the
likely result of not having any treatment.
2) Can you
retain this information?
If you seem to understand the relevant
information, but cannot remember it for more than a few seconds or
minutes, you are unlikely to be able to use it to make an informed
3) Can you
weigh up the information?
Can you compare the benefits and risks and
use this to make your decision? You may be able to understand the
information (test 1), remember it (test 2), but not be able to
weigh facts as you would normally. A person with psychosis may be
influenced or distracted by hearing voices. A person with severe
depression may feel so hopeless that any treatment seems pointless,
even though there is a good chance of recovery.
4) Can you
communicate your decision?
You can do this by talking, writing, in
sign language, by nodding or even blinking an eyelid.
The answer must be yes to all four of the
above questions for you to be judged to have capacity.
Who measures capacity?
By using these four questions, any professional can test
capacity. This should be the person most directly involved with the
issue at hand. For health decisions, the doctor should test for
capacity. If a will needs to be drawn up, and the lawyer has doubts
about someone's capacity,they may ask an expert, such as a
psychiatrist or a psychologist, to help them.
- A doctor who wants to treat you under the
MCA must contact your family (or close friends/care workers if
there is no family) to find out what you would normally want.
- The Court of Protection oversees all
matters relating to capacity.
- You can give someone the power to make
decisions for you if you lose capacity in the future. This is
called Lasting Power of Attorney (LPA). You have
to do this when you still have capacity.
- You can make an “Advanced
Directive”, a decision in advance to refuse certain
treatments if you lose capacity in the future. Again, you can only
do this when you still have capacity. This can be useful both with
disorders that get better and worse, like schizophrenia, or with
disorders that just get worse, such as dementia.
- If you have no family or close friends to
speak for you, an Independent Mental Capacity Advocate (IMCA) can
What happens next?
The Mental Capacity Act gives doctors and nurses the power to
treat somebody against their will if that person does not have the
capacity to decide about treatment. Even when necessary, it
can be upsetting for the person and their family, so it is not done
Mental Illness and the Mental Health Act
For mental illnesses, the Mental Health Act
is used instead. This allows for compulsory treatment even if a
person is judged still to have capacity, but they are judged to be
a risk to their own or others’ safety, or so ill that they need the
- are worried about your capacity
- are worried about the capacity of a friend or
- feel you are being pressurized into a
treatment you don’t really want.
discuss this with your doctor or any member of
If you still aren't happy, you can contact the
UK care and research charity for people with
this disease and other dementias, their families and carers.
National charity to support people with learning
MIND: Infoline: 0300
Mental health charity with information on
Northern Ireland: In
Northern Ireland, The Mental Capacity (Health, Welfare &
Finance) Bill is under discussion, and it is hoped will
be enacted in 2013/14.
Authors: Dr Sohom Das and Dr Michael Yousif
Series Editor: Dr Philip Timms
User and Carer input: members of the RCPsych Service User
Recovery Forum and Carers Forum.
For a catalogue of public education materials or copies of our
leaflets please contact:
Royal College of Psychiatrists, 21 Prescot
Street, London E1 8BB, Telephone: 020 7235
Charity registration number (England and Wales) 228636 and in
© February 2012. Due for review: February 2014.
Royal College of Psychiatrists. This leaflet may be
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Please note that we are unable to offer advice on individual cases. Please see our
advice on getting help.
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