Here you can read about how you can assist someone who may lack mental capacity to make the right decisions for them.
Everyone should be able to make decisions about their own lives. Sometimes this is not possible and the person lacks capacity to make a decision.
Lack of mental capacity could be due to a stroke or brain injury, a mental health problem, dementia, a learning disability or substance misuse. In all these instances a person may lack capacity to make particular decisions at particular times. It doesn’t mean that they lack capacity to make any decisions about their life. Lack of capacity can be temporary, and where this is the case the decision should be made, if possible, when the person regains capacity.
The Mental Capacity Act 2005
The ability to make decisions is referred to a ‘capacity’ and there is a law that helps to empower and protect people who may lack capacity. The law is called the Mental Capacity Act 2005.
The Office of the Public Guardian has a number of useful Mental Capacity Act booklets
which you can download, explaining what the law is and how it could affect you and the person you want to help.
How do I help someone to make decisions?
When it has been established that an individual does not have capacity to make a decision, a decision must be made in the individual’s best interests by the decision-maker. To do that, they must listen to what the person wants, ask the people who know them best and involve any carers. The decision-maker is whoever is making the decision. For medical decisions, this is usually a doctor, and for accommodation decisions a social worker.
Checklist for decision-makers
The Mental Capacity Act Code of Practice provides a best-interests checklist for decision-makers to use. The list below is not exhaustive and you should refer to the Code of Practice for more details. They include:
- it is important not to make assumptions about someone’s best interests merely on the basis of the person’s age or appearance, condition or any aspect of their behaviour
- the decision-maker must consider all the relevant circumstances relating to the decision in question
- the decision-maker must consider whether the person is likely to regain capacity (for example, after receiving medical treatment). If so, can the decision or act wait until then?
- the decision-maker must involve the person as fully as possible in the decision that is being made on their behalf
- if the decision concerns the provision or withdrawal of life-sustaining treatment the decision-maker must not be motivated by a desire to bring about the person’s death
The decision-maker must in particular consider:
- the person’s past and present wishes and feelings (in particular if they have been written down)
- any beliefs and values (for example, religious, cultural or moral) that would be likely to influence the decision in question and any other relevant factors
As far as possible the decision-maker must consult other people if it is appropriate to do so and take into account their views as to what would be in the best interests of the person lacking capacity, especially:
- anyone previously named by the person lacking capacity as someone to be consulted
- carers, close relatives or close friends or anyone else interested in the person’s welfare
- any attorney appointed under a Lasting Power of Attorney
- any deputy appointed by the Court of Protection to make decisions for the person
If you are making the decision under the Mental Capacity Act you must take the above steps, amongst others and weigh up the above factors in order to determine what is in the person’s best interests. For more information you should refer to the Code of Practice.
What should I do if there is no one else to help me make these decisions?
For decisions about serious medical treatment, certain changes of accommodation and care reviews where the person lacks capacity, and where there is no one who fits into any of the above categories to be consulted, the decision-maker must consider whether they need to involve an Independent Mental Capacity Advocate (IMCA). Decision-makers must also consider involving an IMCA in decisions involving adult protection issues, even if there is someone who fits into any of the above categories who could be consulted.