How the Mental Capacity Act will work

The Act introduces a new legal presumption: that everyone has capacity to make decisions unless it is shown otherwise. But when a person lacks capacity, the Act lays down the rules for how decisions can be made by others on the person's behalf. It defines when and how others can

• Decide whether someone lacks capacity
• Support people to make as many decisions as possible for themselves
• Make decisions for a person when necessary
• Take practical steps to give "care and treatment" to a person amounting to more than just making a decision.

The main principles are that someone taking decisions for another person must act in the best interests of the person and choose the options which are least restrictive of their rights and freedoms.

Many of these actions and decisions will be allowed without any formal procedure. Carers, family members and doctors are given the the authority to justify acts of caring for the person and helping him or her with practical tasks. Medical treatment and social care for mental health service users who lack capacity will be given under this authority, unless other, more formal, provisions apply, such as:

• A written Advance Directive written by the person when they have capacity, refusing certain medical treatment.
• A Lasting Power of Attorney (LPA). A person can make a LPA while he or she has mental capacity, giving the power to make decisions on their behalf to a specified person or "donee".
• A decision by the Court of Protection.
• The appointment by the Court of Protection of a Deputy to make decisions on behalf of the person.
• The advisory input of an "Independent Consultee", appointed by social services.

If a mental health service user lacking capacity (or their donee or deputy) wishes to challenge the care and treatment decisions made, he or she will be able to apply to the Court of Protection for a decision or for the appointment of a deputy to make decisions instead.

Substitute decision-making by advance directives or by carers and donees will not apply to treatment given to mental health service users who are sectioned under the Mental Health Act.

For more information contact: Anna Bird

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