The Mental and Capacity Act also allows a person to plan ahead for a time when they may not be able to make decisions themselves. It clarifies who can make decisions, in which situations, and how they should go about it.

Mental capacity means the level of understanding that someone has.  Some people may have had very limited mental capacity from birth, whilst other people may have developed an illness or suffered an injury that affects their understanding.

The Mental Capacity Act 2005 aims to protect people who can’t make a decision for themselves. The Mental and Capacity Act also allows a person to plan ahead for a time when they may not be able to make decisions themselves. It clarifies who can make decisions, in which situations, and how they should go about it. There are many parts to the Act including parts on Lasting Power of Attorney.

What is meant by ‘capacity’?

The law states that a person lacks capacity if they are unable to make a decision for themselves – in relation to a specific matter at a particular time – because of an impairment of, or a disturbance in, the functioning of the mind or brain. In some cases, a person’s capacity may be permanently affected, perhaps because they have a form of dementia, a learning disability or have suffered a brain injury. But in others, the person’s capacity might be affected only for a temporary period, perhaps because they are confused or unconscious.

How a person’s capacity is assessed

The law takes a positive approach. It starts by presuming someone has enough understanding (mental capacity) to make decisions. If there is a real doubt about this, the law sets out a method to judge whether someone has capacity to make a particular decision. This will decide whether the person can make a particular decision that needs to be made, for example, whether to pay their rent or to spend the money on other things, or whether to move into a care home.

Before deciding that a person lacks the capacity to make a decision, the law says that as much support as possible must be given to help the person decide for themselves. For instance, this might include making sure the person is comfortable, explaining things very carefully and clearly, using sign language, or having someone else there who is good at communicating with and understanding the person. In many cases you, the carer, are better at communicating with the person than a professional, because you have had a lot of practice and know the person well.

The Mental Capacity Act asks:

1. Does the person have any mental impairment?
2. If so, does that prevent the person making the decision?

There are four more questions to ask to find out whether the person can make the decision:

• Can they understand the information needed to make that decision?
• Can they remember the information for long enough to make the decision?
• Can they weigh up the consequences of deciding one way or another?
• Can they communicate their decision? This may be by a nod or a blink, as well as by speech or by signing.

For day to day living, these decisions are often made by you as carers – for instance, deciding whether a person can choose what to wear that day or what activities to do.

Some decisions about mental capacity are the responsibility of other people. For example, a social worker or another trained professional carrying out an assessment is responsible for judging whether someone can make a decision about their care support or where they want to live. A consultant is responsible for judging whether someone can make a decision to have an operation.

Professionals, like carers, must make every effort to help the person to understand the information and to make a decision, before judging that the person can or cannot make their own decisions. Your knowledge of the person will help make sure that this is done properly.

When a person lacks the capacity to make a particular decision

If the person you are looking after can’t make a decision, then someone else has to take that responsibility. Very often, you, as a carer, do that about all sorts of day to day things. If it is a decision about social care services or health treatment, then usually the social worker/trained professional or doctor has to make the decision, but with your help and advice.

The law says that these decisions must be made in the ‘best interests’ of the person you look after. This means taking all the relevant factors into account, including:

• consulting you as the carer and any other family members and close friends
• involving the person you look after as much as possible and listening to what they say
• if the person previously had mental capacity, then their past opinions, values and beliefs must be taken into account
• restricting the person’s freedom as little as possible.

As the carer you probably know more about the person you care for than anyone else, and so you want the best for them.

Consulting you means involving you in the decision about best interests; listening to your opinions and respecting your knowledge of the person.

If the person has lost mental capacity because of an illness or an injury, then you will be able to explain what they were like and what was important to them when they were able to make all their own decisions.