Capacity and the Mental Capacity Act
Who is this leaflet for?
Anyone who wants to know more about:
- How the law protects you when
you cannot make decisions for yourself.
It is based 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 have the legal right
to make a decision because it seems to be for us;
it's “in our own best interest”.
What is capacity?
You have capacity when you decide 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.
The law say that you "lack capacity" to
make that decision.
Can our capacity change?
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. Say 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 or not.
When you have to
make the decision:
Capacity can change with time
because your state of mind can change with time. An illness
that interferes with your thinking can get better – at least
for a while. An older person can become confused with a chest
infection, so that they can't make many decisions
properly. Their normal state of mind can return when the
infection is treated and they can, again, make decisions in the way
they normally would.
Capacity, health and medicine
Normally you decide about whether you want a treatment. You
decide what’s best for you.
You can disagree with your doctor, even if
the doctor finds it hard to understand. For example, a
Jehovah’s Witness may refuse a blood transfusion because it is
against their religion. If you have capacity, the doctor has to
accept your decision.
It is harder when you need to make a
decision, but you don't have the capacity to make it. An infection,
a mental illness or dementia may interfere with your thinking. The
Mental Capacity Act helps us to work out what to do in these
Mental Capacity Act 2005 (MCA)
This Act protects people lacking capacity from having decisions
made for them that are not in their best
interests. This can happen when:
- Someone makes the decision, but 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
impaired capacity. You might give someone money to spend for you,
but they then keep it for themselves.
There are 5 principles:
- You have capacity, unless the tests
described below show that you don't.
- Your best interests come first. Any
decision must be as close as possible to what you would have
normally wanted for him yourself.
- You can have help to make a decision for
yourself. A decision can be put off or family members can
support you while you think about it.
- If you have the capacity to make a
particular decision, you have the right to make a decision that
others might see as unwise.
- If the decision has to be made for
someone else, it should be the least disturbing and least
dangerous option for them - the "least restrictive action".
How do you test capacity?
There are four questions which need to be answered.
1) Do you understand the
To decide about a treatment, you need
to understand what you might gain from it, what the risks are,
any other treatments available and what might happen if you don't
have any treatment.
2) Can you
retain this information?
If you can understand the relevant
information, but can't remember it for more than a few seconds or
minutes, you won't 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. If you have a psychosis,
you may be influenced or distracted by the voices that
your are hearing. If you are very depressed, you 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 have capacity.
Who measures capacity?
Any professional can test capacity. This should be the person
most directly involved with the issue at hand. For health
decisions, this should be the doctor. If a lawyer is drawing up a
will, but has doubts about their client's capacity, they may
ask for an expert opinion from a psychiatrist or a
- 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 everything to do with 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
Decision” This is a way of planning ahead, while you still
have capacity. You can say that you want (or don't want)
certain treatments if you lose capacity in the future. You can
use this if you have a disorder that just worse, like
- If you have no family or close friends to
speak for you, an Independent Mental Capacity Advocate (IMCA) can
What happens next?
If you don't have the capacity to decide about treatment, the
Mental Capacity Act gives doctors and nurses the power to give you
a physical treatment against your will. If it has
to be done, it can be upsetting, so this step is taken
Mental Illness and the Mental Health Act
For mental illnesses, the Mental Health Act
is used instead. This allows a psychiatrist to treat you against
your will, even if you still to have capacity, but they seem
to be a risk to yourself or other people's safety, or so ill
that you need the treatment.
- 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
0300 123 3393.
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 3701
Charity registration number (England and Wales) 228636 and in
© March 2014. Due for review: March 2016.
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