The Mental Capacity Act 2005 (MCA) governs how capacity should be assessed, and the procedure for how decisions should be made for those who lack capacity to make certain decisions themselves.
The five key principles in the Act are as follows:
- Every adult has the right to make his or her own decisions and must be assumed to have capacity to make them unless it is proved otherwise;
- A person must be given all practicable help before anyone treats them as not being able to make their own decisions;
- Just because an individual makes what might be seen to be an unwise decision, they should not necessarily be treated as lacking capacity to make that decision;
- Anything done or any decision made on behalf of a person who lacks capacity must be done in their best interests; and
- Anything done for or on behalf of a person who lacks capacity should be the least restrictive of their basic rights and freedom of action.
Where someone is found to lack the capacity to make a decision themselves, the law states that any decision made on their behalf must be made in a way that is the least restrictive of their rights and freedoms, and in their best interests.
The individuals that are consulted about and have a right to contribute towards the best interest decision vary depending on the subject matter of the decision that is to be made. The process will also depend on whether the individual has appointed an attorney while capacious, or if a Deputy has been appointed by the Court of Protection, after the person has been deemed to lose capacity.
Where the decision at stake relates to the type of care that a person should be receiving, the decision making process requires for input to be sought from the healthcare professionals involved, care home representatives and carers if applicable, the person's family members, and depending on the individual's conditions and wellbeing, their own views, whether expressed verbally, physically or in whichever manner they are able to communicate.
If a Deputy or Attorney for Health and Welfare has been appointed, then they are very likely to be the decision makers in the first instance about a health and welfare decision that needs to be made. However, if they haven't, then any major decisions about care and accommodation will usually be made by the Local Authority or NHS Trust responsible for the person's care.
There are certain situations where the gravity of the welfare decision means that it must be referred to a Court of Protection Judge for consideration. For instance, in instances of administration of serious medical treatment, or where those involved in the person's care do not agree on what is in their best interests.
The decision-making process surrounding care is complex and can become contentious when the proper procedures are not followed. If you have any questions about the manner in which decisions surrounding care are being made for an individual that has been deemed to lack capacity, please get in touch with one of our specialist team.
We would also like to invite you to join our expert panel on 12 June to explore how Court of Protection and Contentious Probate issues intersect, and the remedies available when disputes arise.
Book your place now: https://lnkd.in/evdVFnAv
Originally published 5 June 2025
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
