The Mental Capacity Act protects people who can’t make decisions for themselves because they lack the ability to understand what is happening to them or weigh up information. This may be because they have a mental illness.
The Mental Capacity Act says everyone should be treated as being able to make decisions. The Act does not make a distinction between good and bad decisions. Doctors and others have to prove that a person cannot make decisions, even when given help to do so.
If it is proved that a person cannot make decisions, The Act tells carers and mental health staff who can make decisions for a person and when they can do this.
When a person lacks capacity
If a person, perhaps with dementia, knows they may lose their capacity to make decisions, through a legal document known as a ‘lasting power of attorney’, they can nominate a carer or friend who they would like to make decisions for them. These decisions can be about health, personal welfare and money matters.
There is a checklist in The Act for a person’s carer or friend. This should be used to make sure any decisions are in the best interests of the person.
The Act also tells those working with mental illness how they should support a person lacking the capacity to make decisions.
If a person does not have anyone to make decisions for them, while they still have capacity, they can make an advance decision refusing specific medical treatment. This will be followed by our staff unless the law requires otherwise, for example, if the Mental Health Act 1983 is used. It is also possible for a person who may lose capacity to provide instructions about their care. These will always be taken into account if the person then loses capacity.
Neglecting those lacking capacity
It is a criminal offence under The Act to neglect or ill-treat a person who lacks capacity which can result in imprisonment for up to five years.