The Mental Capacity Act is a legal frame work that was introduced in 2007.  It enables health and social care professionals as well as carers to consider the provision of care and treatment for service users who may lack capacity or are unable to give consent to their treatment.

The Mental Capacity Act applies to all those over the age of sixteen, who have been diagnosed with an impairment or disturbance of their mind or brain.

The disturbance might be permanent or temporary and could include a service user with a significant mental health problem (e.g. someone being affected by symptoms of dementia) to somebody temporarily under the influence of drugs or alcohol.

The Mental Capacity Act also enables service users to plan for the future while they still have the capacity to do so.

Health or social care professionals assessing someone’s capacity to make a decision must use the two-stage test of capacity.

The first question asks whether the person has an impairment or disturbance of the mind or brain.

The second question considers whether the identified impairment or disturbance affects the person’s ability to make a specific decision.

The health or social care professional will then have to answer a four part functional test to determine whether a decision should be made in the best interest of the person.

The functional test includes four questions;

  • Does the service user understand the decision to be made?
  • Is the service user able to retain the information given about the specific decision?
  • Can the person weigh up consequences of making that decision?
  • Can the person communicate the decision by any means?

If the person is unable to do any one of the four they would be deemed to lack capacity, at the time of the assessment for that specific decision, under the Mental Capacity Act.

If a person is deemed to lack capacity to make a specific decision the health or social care professional has to make a best interest decision on their behalf. The best interest decision must follow the best interest checklist. The checklist takes into consideration the known past wishes, feelings, beliefs and values of the person and seeks the views of those interested in the welfare of the person.

When a person is subject to the Mental Health Act the use of Mental Capacity Act may still be appropriate because the Mental Health Act only allows care and treatment for the person’s mental health disorder. If a service user detained under a section of the Mental Health Act requires any physical treatment (e.g. for diabetes or blood pressure) the Mental Capacity Act would still apply.