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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.

  • This information applies to England and Wales.
  • This information applies to adults. It doesn't apply to children unless specifically stated.

What are my best interests?

The Mental Capacity Act doesn't say exactly what your best interests are. They will vary from person to person. But people must act in your best interests before taking certain steps that affect you while you lack capacity. This includes taking certain steps relating to your care and treatment.

Best interests checklist

Section 4 of the Mental Capacity Act has a best interests checklist. This outlines what someone needs to consider before taking an action or making a decision for you while you lack capacity. They should:

  • Consider your wishes and feelings. This means your current wishes and those you expressed before losing capacity to make the decision. It also includes any beliefs and values that are important to you.
  • Consider all the circumstances relevant to you. This includes the type of mental health problem or physical illness you have, and how long it’s going to last. It also includes:
    • Your age
    • Whether you would normally take this decision yourself
    • Whether you’re likely to recover capacity in the near future
    • Who's caring for you now or has cared for you in the past
  • Consider whether you’ll have capacity to make the decision in the future. This may include assessing whether the decision can be put off in the short-term. For example, if you’re experiencing severe mental distress, will you feel better soon and more able to make your own decisions?
  • Support your involvement in acts done for you and decisions affecting you.
  • Consider the views of your carers, family or other people who may have an interest in your welfare. Or anyone you’ve appointed to act for you.
  • Consider if there are other questions relevant to your situation.

What can people do in my best interests in relation to my care and treatment?

The Mental Capacity Act gives people the legal right to take certain steps relevant to your care and treatment in your best interests. This includes things like:

  • Helping you around the home
  • Deciding if you should move
  • Deciding if you should have a serious operation                      

To use these rights, they must make sure that:

  • You don’t have the capacity to consent for yourself
  • They follow the best interests checklist

In cases of serious treatment, they may need to ask the Court of Protection for permission to give it to you. For example, if you’re having an operation where the effects will be permanent.

If there’s a disagreement about whether a decision is in your best interests, you or someone helping you can go to the Court of Protection to settle the disagreement. For example, this may be disagreeing about whether or not you should move into supported living accommodation.

Example

Suzanne lives at home with her mother and gets support from her local authority to help with her personal care. She has a learning disability and lacks capacity to decide where to live.

The local authority think that Suzanne’s needs are increasing and that she should move into supported living. Suzanne’s mother disagrees. She says that Suzanne wants to stay at home with her.

As Suzanne’s mother disagrees, the local authority should apply to the Court of Protection. They can decide whether it’s in Suzanne’s best interests to stay at home or move into supported living accommodation. The court must consider Suzanne’s wishes, but they may be outweighed by other factors.

The Court of Protection can only choose between options that the local authority or NHS is prepared to pay for. They may not be prepared to pay for Suzanne’s care at home, as it might be more expensive. In this case, Suzanne’s mother may need to challenge the decision by:

  • Using the local authority’s complaints process
  • Contacting the Local Government Ombudsman
  • Bringing a claim for judicial review

For more information, see our pages on challenging health and social care decisions.

Can force ever be used against me in my best interests?

The Mental Capacity Act says that if you don’t have the capacity to make a particular decision, you can be physically restrained to stop you from being harmed.

What amount of restraint is reasonable depends on how likely you are to suffer harm, and how serious the harm might be. For example, it might be reasonable for someone to hold onto your arm to stop you walking into the road. Or it might be reasonable for someone to restrain you from tearing up a large amount of money, as this action will cause you a lot of financial harm.

Usually, the restraint must not be so great that it would take away your liberty. If you don’t have capacity, you can only have your liberty taken away under special procedures called the deprivation of liberty safeguards. Or, in some cases, by a court order.

If these procedures aren’t followed, the deprivation of your liberty could be unlawful.

Example

Amir has a learning disability which makes it difficult for him to recognise risk and danger. He often wanders out of his house. On one occasion, he walked across the road without being aware of the passing traffic.

Amir’s sister, Sarah, saw that he was about to walk onto a busy road. So she quickly grabbed his arm to stop him.

Amir does not have the mental capacity to be aware of road safety. So Sarah was allowed to use some force to stop him from walking into the road.

If Sarah stopped letting Amir leave the house alone because of the risk of traffic, this might be a deprivation of his liberty. If she tied him to his chair and refused to let him leave, this would be an unreasonable amount of restraint.

It’s likely that Sarah would have to find a less restrictive way of restraining Amir. She might wish to get legal advice, as she may have to ask for legal permission to restrain him on a regular basis.

< Capacity Deprivation of liberty >

This information was published in April 2023. We'll revise it in 2026.

References are available on request. If you would like to reproduce any of this information, see our page on permissions and licensing.

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