Mental Capacity

The Mental Capacity Act 2005 Section 1 sets out five statutory principles that underpin the legal requirements in the Act. These are:

1. A person must be assumed to have capacity unless it is established that they lack capacity.
2. A person is not to be treated as unable to make a decision unless all practicable steps to help him or her to do so have been taken without success.
3. A person is not to be treated as unable to make a decision merely because he or she makes an unwise decision.
4. An act done or a decision made, under the Act for or on behalf of a person who lacks capacity must be done, or made in his or her best interests.
5. Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.

All safeguarding considerations and decisions should take into account the legal requirements of the Mental Capacity Act and associated Code of Practice.

The focus should be on the reduction of abuse or neglect. It should not however limit the action that may be required to protect others who are at risk of harm.

The principle of the assumption of capacity does not exempt professionals from conducting robust assessments and asking challenging and searching questions about people who are making choices that are problematic or manifestly not good for their well-being.

Considerations of mental capacity:

• Should be time and decision specific;
• Should maximise engagement in the enquiry process. For example, provide assistance with communication, talk to the adult at risk at a time when they are best able to make a decision for themselves;
• Should result in decisions that are in the best interests of the adult at risk who lacks mental capacity;
• Should be the least restrictive option to meet care, support and protection needs.