What is the Mental Capacity Act (2005)

The Mental Capacity Act (2005) applies to all people aged 16 years of age and over if it is deemed that they lack the mental capacity to make an informed decision. The assessment of Mental Capacity must not be purely based upon the person’s diagnosis of a mental disorder or impairment of the mind or brain, for example, dementia. But the person’s ability to understand, retain, weigh up and communicate a decision regarding the salient information regarding the specific decision. The following five principles of the Mental Capacity Act (2005) must be followed

• An assumption of capacity
• Supporting people to make their own decisions
• People have the right to make eccentric or unwise decisions
• Where someone lacks capacity staff must act in the person's best interests
• Where someone lacks capacity, any action we take on their behalf must generally be the least restrictive option

In order for a mental capacity assessment to be undertaken the following three questions need to be answered by the decision maker :

1. Can the person make their own decision. This is a functional test and involves assessing whether someone can:

• Understand the information relating to the decision
• Retain the information long enough to make the decision
• Use and weigh the information
• Communicate their decision

2. Does the person have an impairment of the mind or brain, or some sort of disturbance that affects the way their mind or brain works. This could include the following:

• Conditions associated with some types of mental illness ( e.g. Schizophrenia)
• Dementia
• Significant learning disabilities
• Effects of brain damage ( for example permanent damage caused to the brain following a road traffic accident)

3. If the person does have a mental impairment, is this the reason that they cannot make the specific decision.

These three questions demonstrate how an assessment of mental capacity has to be undertaken and clearly evidenced in written documentation provided by your organisation.

Examples of decisions which are made on a routine basis in health and social care are:

1. A person with severe learning disability making a decision about the removal of teeth.

2. a person with dementia making a decision about where they should live. If following a mental capacity assessment, the decision maker finds the person who lacks mental capacity does not have anyone whom can be consulted and they are deemed to be ‘unbefriended’. Which means they have no family or friends that can be consulted a person called an Independent Mental Capacity Advocate (IMCA) can be appointed as part of the best interest decision making process. Information on Wolverhampton’s current Advocacy Service can be found here and how and when to make a referral https://www.pohwer.net/.

Resources and guidance

The City of Wolverhampton have a internal Mental Capacity Act guidance document for staff alongside a Mental Capacity Competency Framework. The competency framework aims to support staff to improve and reinforce existing knowledge around MCA, dependent upon their job role within the Council and highlights specific training required for social workers and other professionals employed by the Council’s families directorate.  

• Mental Capacity Competency Framework

• Mental Capacity Act Guidance 

• E-learning module on Mental Capacity accessed via the learning Hub

• Mental Capacity Act Codes of Practice (current as of July 2022) 

• *Please note the revised Mental Capacity Act Codes of Practice is currently in a consultation period and can also be accessed here- no implementation date has been published*

• Social Care Institute for Excellence 

• Guidance materials are also available on the Local Government Association website