Mental Capacity Act 2005

The Mental Capacity Act (MCA) provides a framework to empower and protect people who may lack capacity to make some decisions for themselves.

The Mental Capacity Act makes clear who can take decisions in which situations, and how they should go about this. The MCA starting point is that it should be assumed that an adult (aged 16 or over) has full legal capacity to make decisions for themselves (the right to autonomy) at the time the decision needs to be made. This is known as a presumption of capacity. The Act also states that people must be given the appropriate help and support to enable them to make their own decisions or to maximize their participation in any decision-making process.

The Act’s underlying philosophy is to ensure that any decision made, or action taken, on behalf of someone who lacks the capacity to make the decision or act for themselves is made in their best interests.

Anyone who works with or cares for an adult who lacks capacity must comply with the MCA when making decisions or acting for that person.

This applies whether decisions are life changing events or more every day matters and is relevant to adults of any age, regardless of when they lost capacity.

The five key principles in the Act are:

  1. Every adult has the right to make his or her own decisions and must be assumed to have capacity to make them unless it is proved otherwise.
  2. A person must be given all practicable help before anyone treats them as not being able to make their own decisions.
  3. Just because an individual makes what might be seen as an unwise decision, they should not be treated as lacking capacity to make that decision.
  4. Anything done or any decision made on behalf of a person who lacks capacity must be done in their best interests.
  5. Anything done for or on behalf of a person who lacks capacity should be the least restrictive of their basic rights and freedoms.

For Solihull CCG professionals needing a quick guide:

For the public and/or carers if you have any questions about caring and the Mental Capacity Act:

Mental Capacity Act Code of Practice

The Code of Practice supports the MCA and provides guidance to all those who care for and/or make decisions on behalf of adults who lack capacity. The Code includes case studies and clearly explains in more detail the key features of the MCA. View updated guidance.

Deprivation of Liberty Safeguards (DoLS)

Sometimes adults who are unable to make decisions about their care and treatment have to be cared for in a particularly restrictive way to keep them safe. The Mental Capacity Act 2005 has set out Deprivation of Liberty Safeguards (DoLS) to protect people in this situation. The safeguards aim to ensure that those who lack capacity and are residing in care home, hospital and supported living environments are not subject to overly restrictive measures in their day-to-day lives.

  • For Solihull Residents, requests & DOLs forms, click here.
  • For Birmingham Residents requests & DOLs forms, click here.

In April 2015, The Law Society has issued comprehensive guidance on the law relating to the deprivation of liberty safeguards. The guidance was commissioned by the Department of Health and aims to help solicitors and frontline health and social care professionals identify when a deprivation of liberty may be occurring in a number of health and care settings.

It uses case scenarios to explain the law following the landmark judgment of the Supreme Court in the case of Cheshire West (2014).

Access the complete guidance. You can also download individual chapters relating to specific care settings. Quick reference sheets also highlight relevant liberty restricting factors and key questions for practitioners relating to each individual setting.

NHS Choices information

  • See Applying the Mental Capacity Act information about the Court of Protection, court-appointed deputies, the Public Guardian and independent mental health advocates.
  • See Advance decisions to find out about how someone can make their wishes about life-saving treatment known in advance.

Mental Capacity Act Project 

Life is full of decisions, some small; like 'what to wear to that party?' and some big like; 'is it time I moved closer to my family?' Most of the time we make our own decisions and bear the consequences those choices whether they turn out to be well judged or not so well thought through! But what happens when someone is less able to make these decisions, perhaps through illness, disability or even the effect of drugs?

Meet the team: Meet Martin, Michelle and Stef who are leading the Mental Capacity Act Project working across Sandwell, Solihull and Birmingham to improve the experiences of people who need help in making decisions, and to support those who care for them. To find out more read our newsletter.

Manuela's story: How an independent, educated and strong willed woman was moved into a care home against her will. Find out how she fought back with the help of an old friend. Reading Manuela's story will help you to judge whether you, your family members or friends might be at risk too, now or in the future. This article offers helpful ideas on the steps you can take to make sure that your wishes aren't ignored. Manuela didn't expect to develop dementia, but there are actions we can all take to make sure that our own choices take centre stage in our lives. View Manuela's story.

What does great practice look like? Ward 11 at Good Hope Hospital didn’t think of themselves as champions of the mental capacity act. When we went to visit, they told us about lots of small changes they had made to build the autonomy, dignity and wellbeing of the patients on their ‘dementia friendly’ ward. Their work embodies the principles of the act in really concrete and tangible ways. Why not have a look to see whether your service is also championing the mental capacity act without even knowing it! View the case study.

Bernie's story: Making decisions about your healthcare and treatment isn’t always easy – especially those life changing decisions that we sometimes need to make in hospital. This video tells one patient’s story of the support he received to make choices about his future care, it is a useful reminder to staff, citizens and carers about how to promote choice, dignity and autonomy in clinical settings. Watch the video of Bernie's story.

July 2015 newsletter: If you support people with dementia, learning difficulties or other cognitive issues, then the Mental Capacity Act (MCA) is relevant to you. The Quarter 2 (July 2015) MCA project newsletter is now available – with news on the government consultation, local partnership working and new initiatives, as well as information about using the law in practice. The newsletter also includes this link to our new web-resource of tools, information, case studies and real life stories.

The Mental Capacity Act team have asked if we can promote the following to our contacts. I suggest adding the text and flyer alongside the previous MCA updates on our webpage https://solihullccg.nhs.uk/yourhealth/safeguarding/mental-capacity-act-2005 and then sending messages via social media.

MCA public event flyerMental Capacity Act public meeting: Wednesday 28 October, 2-3.30pm at Carrs Lane Conference Centre, Birmingham B4 7SX. This is an opportunity for citizens to hear about and respond to proposed changes in the law which governs how choices can be made on behalf of adults with cognitive problems. The Law commission, who are running this consultation, will be present at this meeting. We are really keen to engage patients, service users, carers and non-specialist members of the public at this event. Download the flyer or for more information call 0121 255 0884 or email stephanie.lunn@nhs.net