How Law is Made, Mental Health Capacity Act 2005

The provisions of the Act apply to those aged over sixteen whose mental capacity is damaged. This includes people who suffer from dementia, learning disabilities, physical illnesses, brain injuries, strokes or substance misuse. The decisions required will involve the individual with the disability as much as is possible, leaving them at the heart of any final conclusion. It is intended primarily to give support to those who have difficulty making decisions for themselves or who, may wish to plan ahead in the unfortunate event that they become unable to make choices for themselves in the future.

The five core principles of the act are intended to make it clearer for professionals in the field, to understand exactly what is required of them and to shield them from litigation.

It lays out how everyone is automatically assumed to have the capacity to make their own decisions and that they should be offered as much help as is available before anyone comes to the conclusion that they do lack this capacity. Also, the individual’s best interests must be taken into account and any decisions taken on their behalf must not benefit anybody other than themselves. This comes into conjunction with the individual’s right to retain any eccentricities that may be described as peculiar unless they are proved to be incapable; the decision would still be valid. Lastly, the intervention that is pursued against a person should restrict their human rights and basic freedoms as little as possible.

The Act sets out a single clear test for assessing if a person is lacking capacity to make a specific decision at any particular time, as a person cannot be determined incapable purely as a result of a particular medical condition; this type of examination which involves two questions is known as the “decision specific test” and is as follows:

• Does the person have impairment of the mind, or brain or a disturbance of mental function?
• If so, does that impairment or disturbance mean that the person is unable to make the decision in question at the time it needs to be made?

These two questions basically show that to have capacity in your own decision making you must:

• Understand the information relevant to the decision
• Retain the information
• Use that information as part of the process of making the decision
• Communicate your decision either by talking, signing or by other means

This provides a checklist of factors that decision makers must follow, although a person can put his or her feelings into a statement if they so wish, the decision maker must then take this into consideration. Carers and family members must also have a right to be consulted when a decision is made.