Mental Capacity Act 2005

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Health and welfare decisions

• What types of decisions can be made on my behalf?
• What are healthcare and medical treatment decisions?
• What if I’ve made an advance decision or a power of attorney?
• What are welfare and personal care decisions?
• When can’t someone make a day-to-day decision for me?
• How can I plan ahead for when I can’t make decisions for myself?
• What happens if I don’t plan ahead?

What types of decisions can be made on my behalf?

Under the Mental Capacity Act, someone could make decisions on your behalf relating to your:

• healthcare and medical treatment, and/or
• welfare and personal care.

What are healthcare and medical treatment decisions?

These could include decisions on whether to have:

• examinations and tests done by doctors and healthcare professionals to reach a diagnosis
• treatment from a doctor or dentist, including medical operations or surgery
• cardiac resuscitation
• breathing, feeding and drinking by artificial methods, such as tubes and machines
• blood transfusions
• having samples of blood or other substances taken from the body
• chiropody, physiotherapy and nursing care.

These are not the only types of healthcare decisions, but are just examples of what might be included.

Routine actions

If you lack capacity, there are many other ‘routine actions’ that carers or professionals can make for you without needing any legal authority or permission from a court.

These routine actions include:

• giving you routine medication
• taking you to hospital for treatment or assessment
• giving you nursing care or emergency first aid or medical treatment.

Section 5 of the Mental Capacity Act says that whatever decision they make must be in your best interests.

What if I’ve made an advance decision or a power of attorney?

A carer or professional should not make any healthcare decisions on your behalf if:

• they know that you have made an advance decision and these decisions would go against what you have put down
• they know that you have named an attorney in a lasting power of attorney and this would go against what they have decided, or
• it would go against a decision made by a deputy appointed by a court or a decision made by the Court of Protection.

What are welfare and personal care decisions?

These are day-to-day actions generally necessary for your welfare.

These include:

• where you are going to live and/or who you will have contact with
• washing, dressing or feeding
• shopping, buying essential goods and arranging personal care services
• tidying or clearing up your home if you are in hospital or residential accommodation
• help with communication
• arranging social care services or a social care assessment.

If you have lost the capacity to decide about these actions, they can usually be taken for you by carers, family members and health and care professionals without the need for permission from a court as long as they are in your best interests.

When can’t someone make a day-to-day decision for me?

Your carers, family members and health and care professionals cannot make decisions related to the following day-to-day actions:

• Accommodation-related decisions. Decisions about your long term accommodation or changing your accommodation will need to involve an independent mental capacity advocate.
• If you have named an attorney under a lasting power of attorney to make personal and welfare decisions for you. No decisions can be made that go against what your attorney has decided for you, except for certain decisions made by your responsible clinician under the Mental Health Act, such as how to treat your mental health problem.
• If you have had a deputy appointed for you. If there are decisions that a deputy appointed by the court has decided, or what the Court of Protection has decided for you, no one can make any decisions that go against that, except your responsible clinician if you are sectioned under the Mental Health Act.

How can I plan ahead for when I can’t make decisions for myself?

If you want to plan ahead for when you will no longer have capacity to make decisions for yourself, you could consider making:

• an advance decision, and/or
• a lasting power of attorney.

What happens if I don’t plan ahead?

If you lose capacity and you haven’t made an advance decision or appointed an attorney, the Court of Protection can:

• make a one-off decision
• make more than one decision, or
• appoint a deputy to make decisions on your behalf.

Read more about the Court of Protection.

This information was published in November 2017. We will revise it in 2019.

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