Mental capacity and best interests
What the Mental Capacity Act 2005 means for you and the people you care about.
Why it matters
Questions about mental capacity can affect consent, treatment, care arrangements and the role of families and attorneys. We help people understand the Mental Capacity Act 2005 and take a meaningful part in discussions about decisions.
The five principles
The Mental Capacity Act is built on five principles:
- A person must be assumed to have capacity unless it is shown that they lack it.
- Everything practicable must be done to help a person make their own decision first.
- Making a decision others think is unwise does not, on its own, mean a person lacks capacity.
- Any decision made for a person who lacks capacity must be in their best interests.
- Before acting, consider whether the same aim can be achieved in a way that restricts the person’s rights and freedom less.
How capacity is assessed
Capacity is about a specific decision at a specific time. Someone may be able to make some decisions but not others, and their capacity may change.
A person is able to make a decision if, with the right support, they can understand the relevant information, retain it long enough, use or weigh it, and communicate their decision. If they cannot do one or more of these, the next question is whether this is because of an impairment of, or disturbance in, the functioning of their mind or brain. Only then do they lack capacity for that decision.
What best interests means
When a person lacks capacity, any decision made for them must be in their best interests. This means looking at the whole person, not just the medical picture. The decision-maker must:
- consider the person’s past and present wishes, feelings, beliefs and values, including anything written down, such as an advance statement
- involve the person as fully as possible
- consult family, carers, attorneys and others close to the person
- consider whether the person may regain capacity, and whether the decision can wait
Best interests is not a vote among relatives, or a matter of professional preference.
How we can help
Our specialist nurses can help you:
- understand the legal framework and how it applies to you
- prepare for meetings, including best interests meetings
- understand the roles of relatives, attorneys and deputies
- think through concerns about how capacity has been assessed
- know when advocacy, a specialist assessment or legal advice may help
We do not carry out formal capacity assessments or make decisions on behalf of the person responsible for the decision.
Frequently asked questions
Does dementia automatically mean someone lacks capacity?
No. A diagnosis alone never decides capacity. It must be considered for the particular decision at the time it needs to be made, with the right support.
Who decides if there is no LPA?
It depends on the decision. For medical treatment, the clinician responsible for the treatment usually decides, in the person’s best interests and after consulting the people close to them. Next of kin has no automatic legal authority to make decisions. If there is no family or friend to consult about serious medical treatment or a move into care, an independent mental capacity advocate (IMCA) must usually be involved. A valid advance decision to refuse treatment must still be followed.
What if the family and clinicians disagree?
Further discussion, a second opinion, an advocate or mediation may help. If a serious disagreement cannot be resolved, it may need to go to the Court of Protection.
Take the next step
We can help you understand the process, your role and the questions worth asking. Contact us for specialist information and guidance.
Send us an enquiry