The Mental Capacity Act (MCA) 2005 covers individuals in England and Wales (aged 16 and over) who can’t make some or all decisions for themselves. The ability to understand and make a decision when it needs to be made is called ‘mental capacity’. Capacity is decision specific.

The MCA states that an individual is unable to make a particular decision if they cannot do one or more of the following four things:

  • Understand the information given to them;
  • Retain that information long enough to be able to make the decision;
  • Weigh up the information available to make the decision;
  • Communicate their decision by talking, using sign language or even simple muscle movements such as blinking an eye or squeezing a hand.

Many individuals with frailty may lack capacity to make decisions for themselves, for instance because they have suffered a stroke, have dementia, or another mental health condition.

Those working with, or caring for, adults who lack the capacity to make decisions for themselves, have a legal duty to consider the Code of Practice. Within this code are 5 key principles:

  1. Every adult has the right to make his or her own decisions, and must be assumed to have capacity to do so unless it is proved otherwise;
  2. Every adult must be supported as much as possible to make a decision before anyone concludes that they cannot make this decision;
  3. Every adult have the right to make what others might regard as an unwise or eccentric decision;
  4. Anything done for, or on behalf of, an adult who lacks mental capacity must be done in their best interests;
  5. Anything done for, or on behalf of, an adult who lacks mental capacity should be the least restrictive of their basic rights and freedoms.

Sometimes, adults who are unable to make decisions about their care and treatment need to be deprived of their liberty for their own safety. The Mental Health Act (MHA) of 2007 was brought in to safeguard the interests of such individuals. These safeguards are usually referred to as DOLS (Deprivation of Liberty Safeguards) and have been incorporated into the 2005 MCA.

DOLS are designed to protect vulnerable people in hospitals or care homes who lack the capacity to consent to the arrangements made for their care and/or treatment, but who need to be deprived of their liberty in their best interests to protect them from harm.

Within the context of self-care it is important to remember that capacity is decision specific, and so an adult might be in the position of having capacity to make some decisions relevant to self-care, but not others, depending upon the complexity and context of the decision. For example, an adult in a care home and subject to a DOLS could still have capacity to decide what they want to wear today, or eat for dinner, or whether they want to sit with others or spend time on their own, and should be supported to make their own decisions wherever possible to improve their psychological wellbeing.

Government Guidance
Mental Capacity Act