Mental capacity involves the ability to take decisions. The Mental Capacity Act 2005 (MCA) assumes that adults have the right to take their own decisions about their care and treatment unless it can be proved that they are incapable of doing so. Mental incapacity therefore is the inability to take decisions about one’s care and treatment with other people then having to take the same decisions for them.

The MCA does not consider mental incapacity to be a general state of mind, but applies to decisions that must be taken at a specific point in time. People with, for example, a learning disability, dementia or brain damage, can often take some decisions for themselves, but not every decision. Also, their ability might change from one time to another. So, it is important to understand what any individual can decide for himself or herself and what he or she cannot decide at the time the decision is being made.

This means that any assessment of mental capacity must sort out a person’s abilities to take different kinds of decisions at different periods of time. It follows that where service users might or might not possess mental capacity at different times, care staff must be constantly assessing and reviewing the person’s mental capacity/incapacity in relation to all the decisions the person needs to take.

The extent to which a care service will become involved in the procedures for assessing the mental capacities of its service users will vary. However, most care services will be concerned with people who lack the capacity to give their consent to receiving the service, or to specific features of their care plan.

To comply with the current care regulations, all providers and their care staff should know how the MCA works, and how the rights of people who might be deprived of their liberty can be upheld. They should then be able to act correctly when providing care for service users who might lack decision-making capacity.

During the COVID 19 outbreak, are providers should follow Department of Health and Social Care guidance, The Mental Capacity Act (2005) (MCA) and Deprivation of Liberty Safeguards (DoLS) During the Coronavirus (COVID-19) Pandemic.

This topic should be used with reference to the Human Rights and Deprivation of Liberty topic.

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