Reasons to choose Wilson Browne
The Mental Capacity Act 2005 incorporates five fundamental principles which must be taken into consideration when assisting people over the age of sixteen that lack mental capacity.
The Act serves to protect those people who lack capacity and aims to empower individuals by maximising their ability to both make and participate in the decision-making process.
The five principles that must be taken into consideration are:
- To assume that a person has capacity unless it is proved otherwise.
- Only treat someone as incapable of making a decision when all practicable steps have been taken to help them without success.
- A person should not be deemed incapable of making a decision on the basis that the decision they have made may seem unwise.
- When doing any act, or making any decision on behalf of someone who lacks capacity the decision must always be taken in that person’s best interests.
- Before carrying out any act or making any decision on another person’s behalf you should consider whether the outcome can be achieved in a less restrictive way. The action or decision taken should be the one which interferes the least with an individual’s basic rights and freedom.
Principles 1-3 help to determine whether an individual has the capacity to make the decision for themselves. It is only when they are deemed to lack capacity that Principles 4-5 come into effect.
Key considerations on application of the principles
Everyone has a right to make their own decisions unless it can be shown that they are unable to do so. The starting point is therefore to assume that all individuals have capacity to make their own decisions
Every possible method should be used to help the individual to make the decision for themselves. It is important to encourage and support the individual in the decision-making process and it may be necessary to involve friends, members of family or advocates.
It is important to ensure that all the information has been provided and that the individual is given a choice and alternative options should also be explored. Alternative methods of communication may be required to help the individual to make the decision. These may for example include using simple words, pictures, signs, non-verbal communication or providing the individual with information that is easy to read.
It is also important to consider whether the decision can be delayed until a time when the individual feels better to make the decision. It is important to give the individual time to make any decision and ensure that the decision is made in the right environment where they feel relaxed and secure.
Everyone has their own values and beliefs, and if an individual’s decision is considered unwise this should not be used to determine whether they lack capacity.
The best interest’s principle can only be applied when the individual is deemed to lack capacity. If an individual does have capacity even if the decision seems unwise it cannot be overruled by saying that you are acting in their best interests.
An individual’s freedom should not be unnecessarily restricted. Decisions made on behalf of those that lack capacity should minimise any interference to an individual’s basic rights and freedom. A very important consideration is whether there is a need to act or make the decision at all.
Ultimately the Act serves to safeguard individuals by protecting and empowering those people who may lack the capacity to make decisions.