Mental capacity and mental illness
Mental capacity means you have ability to make your own decisions. If you lose mental capacity the Mental Capacity Act 2005 (MCA) protects you and your rights. You may lose mental capacity because of your mental illness. This section explains mental capacity and how the MCA works.
- The Mental Capacity Act (MCA) is the law that protects you if you are not able to make decisions. You may lack mental capacity if you can’t:
- understand information about a decision,
- remember this information,
- use this information to make a decision, or
- communicate your decision.
- You may only lack mental capacity for a short period of time.
- Being unwell or having a mental illness does not mean you lack mental capacity. Most people with a mental illness do not lack mental capacity.
- Being held under the Mental Health Act does not mean that you lack mental capacity.
- Making a bad decision does not mean that you lack mental capacity.
- A health professional will assess if you have mental capacity.
- The MCA sets out who can make decisions for you if you lack capacity.
- You can make an advance statement or advance decision about your wishes for treatment and care in case you lose capacity in the future.
- If someone makes decisions for you because you lack capacity, the decisions need to be in your ‘best interests’.
What is mental capacity
Mental capacity means you have the ability to make your own decisions. If you have the mental capacity to make a decision you will be able to:
- understand all the information you need to make that decision,
- use or think about that information,
- remember that information, and
- be able to communicate your decision to someone else.
What is the Mental Capacity Act (MCA)?
The Mental Capacity Act (MCA) will cover you if you are:
- 16 or older, and
- live in England and Wales.
The MCA is there to do the following:
- Help you to make decisions for yourself if you lack mental capacity. Your friends, family or carer can help you to make a decision. If you don’t have any support, you will get an independent mental capacity advocate to help you.
- Give you the option to make decisions about your future. Such as your care preferences and who will manage your money. But you will have to make these decisions when you have mental capacity.
- Say who can make certain decisions for you. Any decision made for you must be in your best interest.
How is mental capacity assessed?
The Mental Capacity Act (MCA) has a test to see if you have the capacity to make a decision when you need to.
Anyone who thinks that you don’t have capacity should be able to prove this. They need to be able to show that you don’t have capacity to make a certain decision when the decision needs to be made. For example, if a professional believes that you lack mental capacity to make a decision about your treatment or care they must do this test with you.
Generally, a capacity assessment should be related to a specific decision that you are making. This is because you might have capacity to make a certain decision but lack capacity to make a different decision. For example, you might be able to decide what treatment you want but you are unable to make decisions about paying bills or looking after your money.
The test has 2 stages.
- there must be proof that you have an illness or injury that affects the way your brain or mind works, and
- if you do, if it affects you so much that you are unable to make a specific decision at a certain time.
Stage 2 will only apply if you have been given enough support to try and make the decision for yourself.
What is an illness or injury that affects the way my brain works?
An illness or injury that affects how my brain works could be things like:
- a mental health condition
- brain injury
- symptoms caused by drugs and alcohol
How am I assessed as unable to make a specific decision at a specific time?
You will be assessed to see if you can:
- understand the information you need to make the decision,
- remember and use that information again,
- understand what will happen when you make the decision, or
- tell people your decision in any way, such as talking, sign language or squeezing someone’s hand.
How could I lose capacity?
You may lose mental capacity because of a mental illness, brain injury, stroke, severe learning disability or if you’ve used alcohol or drugs.
Losing capacity may be temporary. You may be going through something such as shock or you may have an illness which sometimes gets worse and affects your ability to make decisions at certain times. This is called ‘fluctuating capacity’.
For example, if you have bipolar disorder you may lack the capacity to make financial decisions if you have an episode of mania. Even if you can understand and recall information and communicate your decision, you may not be able to understand what will happen when you make that decision.
Who will assess my capacity?
If your carer or healthcare professional think you lack the capacity to make a certain decision, they will assess your capacity. They have to check if you can make the decision for yourself with their support.
The person who will assess your capacity depends on the type of decision you need to make. See the 'Decisions' section of this page for more information.
Anyone who assesses your mental capacity should have the skills needed to communicate with you. A professional can help the assessor if they need support.
If you are worried that you might lose mental capacity in the future there are things that you can do.
Can I make Lasting Power of Attorney (LPA)?
Anyone can make a Lasting Power of Attorney (LPA) but you may have to pay.
An LPA means that you give a trusted person or people the power to make decisions for you if you lose the ability to decide for yourself. If you make an LPA you are called the ‘donor’ and the person who makes your decisions is called the ‘attorney’. You must be over 18 and have capacity to make someone your ‘attorney’.
There are two different types of LPA.
- Property and financial decisions
- Health and welfare decisions
Health and welfare
Health and welfare decisions can include day-to-day care, medical treatment, complaints about your care and treatment or where you should live.
Your health and welfare LPA will only be able to make a decision for you if you lose mental capacity.
Property and finance
Property and financial decisions can include buying property, managing bank accounts, investing money or claiming benefits.
Your property and financial LPA can make decisions for you straight away if you want them to. But you will still be able to make the final decision. Or you can sign to say that your property and financial affairs LPA will only be able to make decisions for you if you lose mental capacity.
You can pick more than 1 person to be you LPA. For example, you could have 2 different people for health and welfare and 1 person for property and finances. You could have the same person for both LPAs. The person, or people you choose, must be over 18.
In your LPA document you will write what things your attorney can make a decision on. An attorney can only make the decisions that the LPA document allows them to. For example, you may only want your attorney to make decisions about your social care but not your treatment.
The attorney must always think about the 5 key principles of the Mental Capacity Act (MCA).
Attorney’s have to follow the MCA Code of Practice and only make decisions that are in your best interests.
- make decisions carefully and correctly, follow your instructions as written on the LPA,
- only make financial decisions which benefit you,
- respect your privacy, and
- follow directions given by the Court of Protection.
Attorneys must not:
- take advantage of their position,
- let other people make any decisions, unless they have the right to, such as a doctor,
- give up the role without telling you and the court first.
Can I make an advance statement?
You can make an advance statement if you have mental capacity at the time. An advance statement is a general preference about your treatment and care. It is free to do.
It isn’t legally binding, but medical professionals should still make a practical effort to follow your wishes.
Can I make an advance decision?
An advance decision is legally binding. It gives you the legal right to refuse specific medical treatment in future when you may not have the mental capacity to make the decision for yourself at that time. An advanced decision can’t be used for anything else. It is free to do.
The links below can help you find out more about LPA’s and advanced statements and decisions in:
- Money matters. Dealing with someone else’s money or benefits
- Planning your care. Advance statements and advance decisions’
How are decisions made for me if I lack mental capacity?
Anyone who makes a decision for you must follow the five key principles of the Mental Capacity Act. They must also follow the Mental Capacity Act Code of Practice and only make decisions that are in your best interests.
What sort of decisions can be made for me?
Most decisions can be made for you. Common decisions made are:
- Financial decisions
- Medical treatment
- Day to day support
But there are some decisions or actions that can never be decided for you. These include:
- Placing a child for adoption
- Getting married or having a civil partnership
Who will make the decision for me?
Different people may need to make decisions for you at different times. There should be more than 1 person involved with certain decisions. Your decision maker is most likely to be the following people:
- Your carer or someone who is involved with your life for day to day decisions
- Your doctor or healthcare professional responsible for medical treatment will make decisions about your treatment
- Your solicitor for legal decisions such as making a will
- Your attorney if your Lasting Power of Attorney(LPA) has been registered
- Your court appointed deputy
Your decision maker has a duty to consult with other people before a decision is made. These people are:
- Anyone who you have said that you want involved with your care
- Anyone involved with your care
- Anyone interested in your welfare such as your close relatives
- Any attorney if your LPA has been registered
- Any court appointed deputy
They will make a ‘best interest’ decision for you.
What is a court appointed deputy?
The Court of Protection (CoP) is there to protect people who lack mental capacity to make their own decisions.
The CoP will usually make a decision for you if it is a one off decision. The CoP can only appoint a deputy for your welfare if they think that it likely that you will lack capacity to make more decisions in future. A deputy can be a friend, relative or professional like an accountant. The CoP will decide what the deputy can make decisions about. The deputy will usually make financial decisions.
What are my best interests?
Your best interests are individual to you. They are based on different things. To decide what your ‘best interests’ are the person making the decision needs to think about:
- Your views and beliefs - such as your religious, political and moral
- What is written on your advance statement
- What is written on your advance decision
- If you will ever be able to make the decision for yourself
- If so, when are you likely to be able to make the decision
- Any other important factors that are specific to the situation
The decision should not be based only on your appearance, age, mental health diagnosis or your behaviour.
The decision maker must allow and encourage you to be involved with the decision that affects you.
I don’t agree that I lack capacity to make a decision. What can I do?
It’s not up to you to prove that you have capacity. It is up to the assessor to prove that you don’t.
You might disagree with your doctors or carers who say that you lack capacity. To try and solve this disagreement you could try the following:
Talk to your assessor
Speak to the person who has assessed that you lack mental capacity to make a decision. Ask them to explain why they think you lack capacity. They must give you evidence to show how they have made their decision in line with the Mental Capacity Act. You could ask for a meeting.
Get a second opinion
Get a second opinion from an independent professional or someone else who is an expert in assessing capacity.
Use a mediation service
A mediator helps people to come to an agreement that is acceptable to everyone involved. They are most helpful when people are not communicating well or don’t understand each other’s point of view. Mediation can help solve a problem at an early stage. A mediator is someone who is independent of the situation.
The Ministry of Justice provide an online directory of mediators. The service is provided on a fixed-fee basis. You can find the list here.
Apply to the court of protection
The Court of Protection can decide if you have the capacity to make the decision or not. They also have other powers such as deciding if an advance decision is valid.
Apply to the Office of the Public Guardian
You should contact the Office of the Public Guardian (OPG) to raise concerns about your attorney or deputy. There is more information on this in the 'Useful Information' section of this page.
Who can help me to challenge the decision?
You can get help from your family or friends to help you do this. If you don’t have family or friends then you may be able to get help from an advocate.
What is an Independent Mental Capacity Advocate?
Independent mental capacity advocates (IMCAs) are people who support you to make or be involved in important decisions. They will:
- Gather relevant information about you
- Understand what your wishes and feelings are likely to be
- Think about your beliefs and values
- Think about different ways to help you in your situation
- Get a second medical opinion if necessary
- Challenge a decision if they disagree with it
An IMCA will only be given to you if:
- you lack capacity to make a specific decision about serious medical treatment or accommodation, and
- you don’t have any family or friends to help you.
What is an NHS complaints advocate?
You can use NHS complaints advocacy if you are making a complaint about an NHS service. They are free to use and independent from the NHS.
You can use the links below to find out more about:
- Second opinions
- Complaints about the NHS and social care.
I don’t agree with a decision that is being made about the person I care for. What can I do?
Often more than 1 person is involved with decisions that affect someone who lacks mental capacity. This means that disagreements can happen.
Who are the Court of Protection and the Office of the Public Guardian?
The Court of Protection (CoP)
The Court of Protection (CoP) can protect you if you lack capacity. It can:
- Decide if you have the mental capacity to make a certain decision that will affect you
- Decide if a lasting power of attorney (LPA) can be registered
- Pick deputies to make decisions in your best interests
- Make decisions in difficult cases
- Decide if Deprivation of Liberty safeguards (DOLs) should be used
- Remove deputies or attorneys who have not carried out their role properly
The Office of the Public Guardian (OPG)
The Office of the Public Guardian (OPG) have different jobs including:
- Take action where there are concerns about an attorney or deputy
- Register LPA’s
- Maintain the public register of deputies and people who have been appointed as a LPA
- Supervise deputies appointed by the Court of Protection, and make sure they follow the Mental Capacity Act
- Look into reports of abuse against registered attorneys or deputies
Can I be restrained under the Mental Capacity Act?
You should only be restrained if you need to be stopped from harming yourself. The amount or type of restraint used, and time that it is used for, needs to appropriate to the level of risk.
Restrained means that someone is:
- using force, or threatening to use force, to make you do something that you don’t want to do, or
- stopping you from leaving somewhere whether you want to or not, such as not allowing you to leave a room or hospital.
Deprivation of Liberty Safeguards (DoLS)
Deprivation of Liberty Safeguards (DoLS) can sometimes be used if you are in a hospital or care home and lack mental capacity. ‘Deprivation of liberty’ means loss of freedom.
The care home or hospital must get permission from a ‘supervisory body’ before they can lawfully deprive you of your liberty. The supervisory body will usually be a primary care trust or a local authority.
DoLS can only be used when:
- It is in your own best interests to protect you from harm
- It is needed because of the likelihood and seriousness of harm
- If there is no other way to keep you safe
There are safeguards in place to make sure:
- you get a representative to support you with all things to do with DoLS. Such as your right to challenge your DoLS through the Court of Protection,
- you and your representative are supported by an independent mental capacity advocate if you want more support, and
- that the DoLS is reviewed.
DoLS can’t be used if you are detained in hospital under the Mental Health Act.
You can learn more about DoLS here.
The MCA has made it a criminal offence to harm or neglect someone who lacks capacity. If someone gets convicted of this offence, they could get a fine or go to prison.
I am a carer. Am I legally protected if I make a best interests decision for someone?
The Mental Capacity Act (MCA) protects carers and healthcare professionals. If the person you care for is assessed as lacking mental capacity you may be asked to make a best interest decision for them.
You are not legally responsible for the outcome of that decision if it was made in the person’s best interest.
What is the difference between the Mental Capacity Act 2005 (MCA) and the Mental Health Act 1983 (MHA)?
The MHA and the MCA are different laws. If you are detained under the MHA it doesn’t mean that you automatically lack mental capacity to make decisions.
The MHA is used to treat people who have a mental illness and need to be in hospital. Under the MHA you can be forced to have treatment whether you agree to it or not. So even if you have mental capacity you can still be given most mental health treatment against your will.
Office of the Public Guardian (OPG)
The Office of the Public Guardian (OPG) protects people in England and Wales who may not have the mental capacity to make certain decisions for themselves, such as about their health and finance.
Telephone: 0300 456 0300. Lines are open Monday, Tuesday, Thursday, and Friday 9am-5pm, and Wednesday 10am-5pm.
Address: PO Box 16185, Birmingham, B2 2WH
Court of Protection
Make decisions on financial or welfare matters for people who lack mental capacity.
Telephone: 0300 456 4600
Address: PO Box 70185, First Avenue House, 42-49 High Holborn, London, WC1A 9JA