Mental Capacity Act 2005
Explains how the Mental Capacity Act affects you and how you can plan ahead for when you no longer have the mental capacity to make decisions for yourself. Applies to England and Wales.
What's the Mental Capacity Act?
The Mental Capacity Act 2005 is a law that sets out how you'll be supported to make decisions, or how decisions will be made for you. For example, if your ability to make certain decisions is affected by:
- A mental health problem
- An illness
- An injury
- The effects of medication
The Act tells you:
- What you can do to plan ahead
- How you can ask someone else to make decisions for you
- Who can make decisions for you if you haven't planned ahead
What are my rights under the Mental Capacity Act?
- You have the right to make your own decisions if you have capacity and are aged 16 or over. There are some exceptions. For example, decisions about treatment for mental health problems if you're detained under the Mental Health Act 1983.
- You'll be assumed to have capacity, unless you've had an assessment showing you don't.
- You should receive support to make your own decisions before anyone assumes you don't have capacity, especially from health and social care professionals. You shouldn't be labelled as lacking capacity just because you've made a decision that others don't agree with.
- Any decisions made for you must in your best interests and restrict your freedom as little as possible.
What's the difference between the Mental Health Act and the Mental Capacity Act?
- The Mental Health Act 1983 applies if you have a mental health problem. It sets out your rights if you're sectioned under this Act.
- The Mental Capacity Act applies if you have a mental health problem and you don't have the mental capacity to make certain decisions.
These are the key differences between the Acts:
Mental Health Act 1983
- Applies if you have a mental health problem, such as depression or bipolar disorder.
- You cannot be detained under this Act unless you meet the conditions for sectioning under the Mental Health Act 1983. See our pages on sectioning for more information on when you can be sectioned.
- If you're detained under this Act, the health professionals must follow this Act when making decisions for you. They don't need to follow the best interests checklist in the Mental Capacity Act.
- Applies to treatment you're given for your mental health problems, such as antipsychotic medication. This means you can be given the treatment regardless of whether you agree to it. And regardless of whether you have the mental capacity to agree to it.
Mental Capacity Act 2005
- Applies if you don't have the mental capacity to make a decision that needs to be made. For example, about healthcare or residential care. Health professionals should assess your mental capacity before an important decision can be made on your behalf. But in an emergency, health professionals may need to make a decision for you before they can assess your capacity.
- Any decisions made about you must follow the best interests checklist in the Act.
- If you cannot be sectioned under the Mental Health Act, you can still be detained and stopped from leaving a place. This would involve the Deprivation of Liberty Safeguards procedure under the Mental Capacity Act, or by a court order.
- If you don't have capacity to make decisions about treatment, the Act can be used to give you treatment for physical health problems. These may have nothing to do with your mental health problem. If you're not sectioned, treatment for your mental health problem could also be given if you're in hospital and do not object, or haven't refused in the past. Or via an advance decision, attorney or deputy.
Capacity
'Capacity' means the ability to understand information and make decisions about your life. Sometimes it can also mean the ability to communicate decisions about your life.
For example, if you do not understand the information and are unable to make a decision about your treatment, you are said to 'lack capacity' to make decisions about your treatment.
See our pages on the Mental Capacity Act for more information.
Visit our full listing of Legal TermsMental Capacity Act 2005 (MCA)
The Mental Capacity Act 2005 is the law that tells you what you can do to plan ahead in case you can't make decisions for yourself, how you can ask someone else to make decisions for you and who can make decisions for you if you haven't planned ahead.
See our pages on the Mental Capacity Act for more information.
Visit our full listing of Legal TermsSection
Being 'sectioned' means that you are kept in hospital under the Mental Health Act. There are different types of sections, each with different rules to keep you in hospital. The length of time that you can be kept in hospital depends on which section you are detained under.
See our pages on sectioning for more information.
Visit our full listing of Legal TermsMental Health Act 1983 (MHA)
This is a law that applies to England and Wales which allows people to be detained in hospital (sectioned) if they have a mental health disorder and need treatment. You can only be kept in hospital if certain conditions are met.
See our pages on the Mental Health Act for more information.
Visit our full listing of Legal TermsBest interests
Health professionals must act in your best interests before taking certain steps that affect your care and treatment.
The Mental Capacity Act has a best interests checklist, which outlines what health professionals need to consider before taking an action or decision for you while you lack capacity.
See our pages on the Mental Capacity Act for more information.
Visit our full listing of Legal TermsMental disorder
When the Mental Health Act talks about someone with mental health problems and whether or not they should be sectioned, it often uses the term 'mental disorder'. The Act says that this can include "any disorder or disability of mind".
Mental disorder can include:
- any mental health problem normally diagnosed in psychiatry
- certain learning disabilities.
Detained
A person is detained if they are being kept in hospital under section and are not free to leave.
Visit our full listing of Legal TermsDeputy
A deputy is a person the Court of Protection appoints to make decisions for you once you have lost capacity to make them yourself. A deputy usually makes decisions about finances and property. The court can appoint a deputy to take healthcare and personal care decisions, though this is relatively rare.
Visit our full listing of Legal TermsDeprivation of liberty safeguards (DOLS)
If you are in a hospital or care home, your liberty can normally only be taken away if health professionals use the procedures called the Deprivation of Liberty Safeguards. This protects you from having your liberty taken away without good reason.
See our pages on the Mental Capacity Act for more information.
Visit our full listing of Legal TermsAttorney
An attorney is a person over the age of 18 whom you have appointed to make decisions on your behalf about your welfare and/or your property and financial affairs. You need an attorney if you are unable to make such decisions yourself. If you do not have the capacity to appoint an attorney, the Court of Protection will appoint a deputy to perform this role.
- A health and welfare attorney makes decisions about things like your daily routine, your medical care, where you live and, if you specially request this, whether you should have life-sustaining treatment.
- A property and financial affairs attorney makes decisions about things like paying bills, collecting benefits and selling your home.
See our pages on the Mental Capacity Act for more information.
Visit our full listing of Legal TermsAdvance decision
An advance decision is a statement of instructions about what medical treatment you want to refuse in case you lose the capacity to make these decisions in the future. It is legally binding.
See our pages on the Mental Capacity Act for more information.
Visit our full listing of Legal TermsThis information was published in April 2023. We'll revise it in 2026.
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