Any decision made on behalf of a person who lacks capacity must be made in their best interests. Any act done on behalf of a person who lacks capacity must be the least restrictive option. Can my family or close friends make decisions for me? Quick links About News Blog Login. Follow us. If they have a choice, have they been given information on all the alternatives? Communicate in an appropriate way Could information be explained or presented in a way that is easier for the person to understand for example, by using simple language or visual aids?
Have different methods of communication been explored if required, including non-verbal communication? Could anyone else help with communication for example, a family member, support worker, interpreter, speech and language therapist or advocate?
Are there particular locations where they may feel more at ease? Could the decision be put off to see whether the person can make the decision at a later time when circumstances are right for them?
Support the person Can anyone else help or support the person to make choices or express a view? If it is a decision about healthcare it will be the relevant health professional. Best interests checklist The Mental Capacity Act sets out a best interests checklist, which must be followed when making a best interests decision: Will the person regain capacity?
Involve the person. Consult all relevant people. Consider all the information. Do not make any assumptions. Consider past, present and future wishes. Always pick the very least restrictive option. Involve the person you are making a best interests decision for When a best interests decision is being made, the person must still be involved as much as possible.
Mental Capacity Act Resource Pack. What does 'mental capacity' mean? What is a 'best interests' decision? What if a family member is not getting involved when a best interests decision is being made about their loved one? There are various things that can be done, for example you can: ask for an advocate to be involved ask for a second opinion make a complaint.
How is capacity assessed? To have capacity to make a particular decision at a given time a person must be able to: understand the information relevant to the decision, including the consequences of making or not making the decision retain that information long enough to make the decision use or weigh the information as part of the decision making process communicate the decision in any recognisable way.
What decisions can be made under the Mental Capacity Act? An advance statement is a written statement that sets down a person's preferences, wishes, beliefs and values regarding their future care. It's not legally binding. The aim is to provide a guide for anyone who might have to make decisions in a person's best interests if that person has lost the capacity to make decisions or communicate their decision.
Find out more about making advance statements. An advance decision sometimes known as an advance decision to refuse treatment, an ADRT, or a living will is a legally binding decision that allows someone aged 18 or over, while still capable, to refuse specified medical treatment for a time in the future when they may lack capacity to consent to or refuse that treatment.
An advance decision must be valid and applicable to current circumstances. If it is, it has the same effect as a decision made by a person with capacity — healthcare professionals must follow the decision. People who make an advance decision may wish to consider letting their family, friends and carers know about it.
Find out more about advance decisions. You can grant a Lasting Power of Attorney LPA to another person or people to enable them to make decisions about your health and welfare, or decisions about your property and financial affairs. Separate legal documents are made for each of these decisions, appointing one or more attorneys for each.
An Enduring Power of Attorney EPA under the previous law was restricted to making decisions over property and affairs, which includes financial affairs and accessing the person's information.
Powers of attorney can be made at any time when the person making it has the mental capacity to do so, provided they're 18 or over. An LPA can be registered at any time, but a personal welfare LPA will only be effective once the person has lost the capacity to make their own decisions. In addition, the Court of Protection will be able to appoint deputies who can also take decisions on health and welfare and financial matters if the person concerned lacks the capacity to make a decision.
They'll come into action when the court needs to delegate an ongoing series of decisions rather than one decision. If the person concerned already has an LPA appointed, they will not normally need a deputy as well. The Public Guardian works with a range of agencies, such as the financial sector, police and social services, to investigate concerns.
The Court of Protection oversees the operation of the Mental Capacity Act and deals with all issues, including financial and serious healthcare matters, concerning people who lack the mental capacity to make their own decisions. The court also tries to resolve all disputes when the person's carer, healthcare worker or social worker disagree about what's in the person's best interests, or when the views of the attorneys conflict in relation to property and welfare.
The court hears important cases, such as whether the NHS should withdraw treatment, whether a serious medical treatment decision is in a person's best interests, or whether it's in a person's best interests to be deprived of their liberty. Cases can be brought to the court by family members, as well as advocates and professionals involved in decisions. The Mental Capacity Act applies to all professions — doctors, nurses, social workers, occupational therapists, healthcare assistants, and support staff.
Most trusts and local authorities will have a Mental Capacity Act lead who provides specialist advice on how the Act works. Page last reviewed: 27 January Next review due: 27 January
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