What Is It?
The Mental Capacity Act 2005 was passed by the UK government to protect those whom are unable to make decisions for their own care or lifestyle. It applies to anyone over 16 with mental health problems, dementia, learning disabilities, stroke and/or brain injuries. The Act encourages people to make their own decisions if able to and promotes their right to, thereby empowering them. These decisions may pertain to finances, social care, medical treatment or even more every day issues.
How Is Mental Capacity Assessed?
Mental capacity is assessed first by checking someone has an impairment of their mind due to an illness such as dementia or a learning disability, or external factors such as drugs. It is then determined if the person is unable to make specific decisions and if they have capacity to make some, as mental capacity can fluctuate with time. It is also assessed if you are able to understand the relevant information, retain it and use the information in your decision making process.
You are not determined to lack capacity just for a poorly made decision, but about your ability to arrive to it. Your mental capacity may be assessed by carers or relatives for smaller things, or by professionals which could include medical or legal experts, depending on the situation and decision to be made by that person. These professionals must adhere to something called the Code of Practice, which you can read about here.
How Fair is the Assessment?
The Act does not generalise broad groups, as an individual assessment is carried out for each person and their mental capacity is decision specific, not based on meeting any set criteria. This allows for a holistic case-by-case approach to ensure the best possible decision can be made for the person in question. Individuals are offered support so that they are able to communicate their decision in a comprehensible way if necessary. This may mean using photographs for someone with a learning disability or braille for a blind person.
Even if a decision if made on your behalf, it must be done in a way to minimize the restriction of your basic rights and freedoms, whilst still acting in your best interests. You can even make decisions ahead of time whilst you retain capacity and express this in a written statement. If there is no one that can support the individual in question, an Independent Mental Capacity Advocate (IMCA) can represent them.
How Does This Act Help Me?
If you lack mental capacity, you can choose a trusted person or several people to be your power of attorney, which would allow them to make decisions on your behalf. It is encouraged for these decisions to still involve the person somewhat and if the person regains capacity at a later date, they will regain control of future decision making. The Act has made it a criminal offence to willfully mistreat someone who lacks capacity, so courts would be able to intervene if decisions are not being made in their best interest. Any written statements written prior to the lack of capacity tend to be legally binding in most cases, so if you ever wanted to plan ahead, this could be a useful way to.
There are also legal safeguards to prevent abuses of power and the Court of Protection are able to make final decisions regarding a person’s capacity and other decisions for them. There is a checklist of factors to consider when your power of attorney or other make a decision for you to resolve what is in your best interest. Some decisions can never be made on your behalf if they are in regards to marriage, divorce, sexual relations, adoption or voting. The Mental Capacity Act is useful when used correctly, and empowering when used to its full potential.