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 plan ahead and understand how someone can be asked to make decisions on their behalf.

It is also used when no plan is put in place, for example, if someone suffered a brain injury due to a serious accident and can no longer make decisions for themselves.

The Act came into force in England and Wales in 2007. The 5 Principles of Mental Capacity Act must be applied 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 determining if someone has lost their mental capacity. The following two questions help identify a person’s loss of mental capacity:

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?

Determining a lack of mental capacity usually falls to family members that are close to the person in question. But, it also involves those that 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 broken up into five key principles. These principles are evaluated before a legal test is taken, to determine an individual’s mental capacity. They are:

1. Presumption of capacity
2. Support to make a decision
3. Ability to make unwise decisions
4. Best interest
5. Least restrictive

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.

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 to communicate. Similarly, lacking the capacity to manage finances doesn’t mean a lack of capacity to decide on what medical treatment someone needs to receive.

If a person lacked the capacity to make a previous decision, it does not mean that they are not able to make a current decision in question.

It’s really important that all steps are taken to determine whether a person can make decisions themselves. This means providing them support to allow them the opportunity to do so. Support to make decisions can be shown by asking:

• At a time that would suit the individual – is there a time of day when they are more alert or coherent?
• In a communication style that suits them
• After all relevant information has been shared with them, and they have had time to digest it

Providing support in the form of someone else who can help to read through and explain information, can also aid decision making.

We all make unwise decisions, we’re human after all. This principle basically states that a person cannot be treated as though they are unable to make decisions for themselves just because they may make an unwise decision. In such cases, the aim is to look at how they decide rather than the decision made.

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.

All decisions made on behalf of a person who lacks the mental capacity to make decisions for themselves, must be done 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 that lacks mental health capacity.

This principle states that if/when a decision is made on behalf of someone who does not have 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.

Our minds are so diverse and complex, it’s no wonder there is a wealth of information relating to our mental health. But navigating the information can be daunting. If you’d like to learn more about Mental Health, take a look at what courses Human Focus offers on the subject, but don’t stress over it.