The 5 Principles of Mental Capacity Act

When a person cannot make decisions concerning their own health and wellbeing, the principles of the Mental Capacity Act 2005 are used to help others make decisions on their behalf.

The Act came into force in England and Wales in 2007. The five principles of the Mental Capacity Act must now be applied when advocating for an individual who lacks the ability to make decisions for themselves.

Whoever is applying the principles of the Act must have a full understanding of each principle and how it applies to an individual’s circumstances.

According to the Mental Capacity Act 2005, “a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.”

Lacking mental capacity can be either permanent or short-term. Permanent lack of mental capacity is where the ability to make decisions for yourself is always affected. This may be due to conditions like dementia, suffering a brain injury or having a severe learning disability.

A short-term lack of mental capacity is where the ability to make decisions changes, from day to day. Some mental health conditions can cause this, such as schizophrenia. Medications or when someone is unconscious can also mean that they have a lack of mental capacity.

The Mental Capacity Act has a two-stage test to determine if a person is unable to make decisions independently:

1. Does the person you’re in charge of providing care have an impaired or disturbed mental function?
2. Does the impairment of disturbance make them unable to make a specific decision when needed?

If the answer to both these questions is yes, then the person lacks the mental capacity to make that specific decision and may require assistance in making it.

Determining a lack of mental capacity usually falls to family members who are close to the person in question. But, it also involves those who help care for the person regularly. If you need help making this decision, you can ask for the assistance of a doctor or another medical professional.

The Mental Capacity Act is comprised of five key principles. They’re designed to protect the rights and freedoms of individuals who may lack the capacity to make certain decisions. The five principles are:

1. Presumption of capacity
2. Support to make a decision
3. Right to make unwise decisions
4. Best interests
5. Least restrictive option

Principles 4 and 5 are only applied when an assessment finds the assessed individual does not have the mental capacity for the decision in question.

Let’s look at each of the five principles to get a better understanding. It is important to remember that cases are based on individual circumstances, as we are all unique.

— Mental Capacity Act 2005, Section 1(2)

As adults, we all have the right to make our own decisions. It simply can’t be presumed that we can’t make decisions on the basis of our age, behaviour, condition or appearance. It will have to be proven.

For example, it can’t be assumed that someone who has suffered a stroke that impaired their ability to communicate is not capable of making decisions for themselves due to their difficulty expressing themselves. Similarly, lacking the capacity to manage finances doesn’t mean someone is unable to decide on the medical treatment they need to receive.

If a person lacked the capacity to make a previous decision, they may still be capable of making the next one.

— Mental Capacity Act 2005, Section 1(3)

Before you can decide that someone lacks capacity, you must take all practicable steps to help them make the decision themselves.

This includes doing everything reasonable to ensure they understand the decision, what it involves, and how to communicate their choice.

Practical ways to provide support include:

• Discussing the decision at a time when they are more alert and coherent
• Using a communication style that suits them
• Explaining all relevant information clearly and allowing time to process it

— Mental Capacity Act 2005, Section 1(4)

We all make unwise decisions; we’re human after all. This principle states that a person cannot be treated as though they are unable to make decisions for themselves simply because they may make a decision that seems ill-advised or difficult to understand. In such cases, the aim is to examine how they make decisions rather than the decisions themselves.

Assessing only the decision made essentially means that the assessor is applying their own societal values and beliefs to the decision, and not those of the person being assessed.

— Mental Capacity Act 2005, Section 1(5)

All decisions made on behalf of a person who lacks the mental capacity to do so themselves must be in their best interest. ‘Best interest’ does not have a legal definition, and as every person and circumstance is different, this may seem like a grey area.

Section 4 of the Mental Capacity Act sets out a procedure to follow to help in deciding what is in the best interest on behalf of a person who lacks mental capacity.

— Mental Capacity Act 2005, Section 1(6)

This principle states that when a decision is made on behalf of someone who lacks mental capacity, the least restrictive option available should be taken. This is to ensure their rights and freedoms are not infringed upon.

It means that the person in a position to make the decision will need to consider a number of less restrictive options before the final decision is made. This is both fair and just, and how we would all want to be treated.

If you or your team come into contact with children or vulnerable adults, you have a responsibility and a role to help keep them safe.

Human Focus provides a range of safeguarding courses to equip individuals with the knowledge and skills needed to recognise, prevent, and respond effectively to instances of abuse, neglect or exploitation against children and vulnerable adults in their field.