For decisions about health and welfare, the Mental Capacity Act (MCA) applies to everyone over the age of 16 years. (It can apply to younger people for property and financial decisions.) It provides a legal framework for making decisions where a person cannot give consent for themselves.
The MCA:
- Establishes a presumption that a person over 16 has the capacity to make decisions for themselves, and emphasises the need to support people to do so where possible.
- Sets out the test to determine that a person lacks capacity for a particular decision if they are unable to understand, retain, use or weigh the information relevant to the decision, or to communicate the decision — and this is because of a disturbance or impairment in the functioning of the mind or brain. This is usually assessed by the clinician or professional offering treatment or care, and must be specific to the particular decision and the time it needs to be made.
- Requires that where a person lacks capacity for a decision, that decision must be made in their best interests. This is broadly defined — not necessarily just the best clinical outcome — and must always be considered alongside whether there is a less restrictive way to meet those best interests.
- Provides for the appointment of Lasting Powers of Attorney or court-appointed deputies to make decisions in some cases.
- Establishes the Court of Protection as a forum to resolve disputes as a last resort.
