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Mental Capacity Act 2005

A general guide on 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.

  • 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?

Health professionals and others must act in your best interests before taking certain steps that affect your care and treatment.

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

Best interests checklist

  • Considering your wishes and feelings: both your current wishes and those you expressed before losing capacity to make the decision, as well as any beliefs and values that are important to you.
  • Considering all the circumstances relevant to you, like: the type of mental health problem or physical illness you have, how long it is going to last, your age, whether you would normally take this decision yourself, whether you are likely to recover capacity in the near future and who has cared or is caring for you.
  • Considering whether you will have capacity to make the decision in future and whether the decision can be put off in the short-term. If you are experiencing severe mental distress, for example, will your distress ease in the near future enough to let you make your own decisions?
  • Supporting your involvement in acts done for you and decisions affecting you.
  • Considering the views of your carers, family, or people who may have an interest in your welfare, or people you have appointed to act for you.

There may be other relevant questions depending on your situation.

What can health professionals do in my best interests?

The Mental Capacity Act gives health professionals the legal right to take certain steps relevant to your care and treatment. This includes for example deciding if you should have a serious operation.

To use these rights they must make first make sure that:

In cases of very serious treatment, such as an operation where the effects will be permanent, they may need to ask the Court of Protection for permission to give it to you.

If there is 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.

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 for a decision on whether it is 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.

But, the Court of Protection can only choose between options that the local authority (or CCG) is prepared to pay for. If they are not prepared to pay for Suzanne’s care at home, which may be more expensive, Suzanne’s mother may need to challenge that decision by:

  • the local authority’s complaints process
  • the Local Government Ombudsman
  • bringing a claim for judicial review.

See our legal pages on challenging health and social care decisions for more information on how to to this.

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

The Mental Capacity Act says that if you do not 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 (section 6 of the Mental Capacity Act).
  • Usually, the restraint must not be so great that it would take away your liberty. If you do not have capacity, you can only have your liberty taken away under special procedures called the deprivation of liberty safeguards, or, less usually, by a court order. If these procedures are not 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 has, on several occasions, wandered out of his house and walked across the road without being aware of the passing traffic.

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

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

However, if Sarah would not let 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 example of an unreasonable amount of restraint.

It is likely she would have to find a less restrictive way of restraining him, and maybe 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 November 2017. We will revise it in 2019.

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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