Mental Capacity Act

What is the Mental Capacity Act?

The Mental Capacity Act provides a framework for personal welfare, healthcare and financial decisions. This supports people to make as many decisions for them as possible and set out their wishes in advance.

The Act applies whenever a decision needs to be made on behalf of a person who lacks capacity, including any assessment of the need for treatment, services or support.


Why do you need to know about the Mental Capacity Act?

The Act clarifies:

  • The process for caring for someone who may, at some time, lack capacity
  • How decisions should be made for that person
  • When family, relatives or carers should be consulted about decisions being made for that person
  • How that person is protected when others are making decisions for them


What is Mental Capacity?

The legal definition states that a person lacks capacity if they have an impairment or disorder of the mind or brain, and cannot do one or more of the four things listed below:

  • Understand the information given to them
  • Retain the information long enough to be able to make a decision
  • Weigh up the information available to make the decision
  • Communicate their decision


The 5 Key Principles are:

  • A presumption of capacity
  • The right for individuals to be supported to make their own decisions
  • Individuals retain the right to make eccentric or unwise decisions
  • All decisions should be made in the best interests of the individual
  • Anything done on behalf of an individual without capacity should be done with the least restriction to their basic rights and freedom


What do you do if someone lacks capacity to make the decision?

  • Try and find out the person’s past and present wishes and feelings
  • Check to see if they may regain capacity
  • Ask advice from carers or family
  • Consider any valid Advance Decisions
  • Find out if they have appointed a Lasting Power of Attorney
  • Decide what is in their best interest


Best Interests

  • Help people to make as much of the decision as they can
  • Support people through the decision
  • With life sustaining treatment, no decisions should be motivated by a desire to bring about the person’s death
  • If lack of capacity is temporary, consider if the decision can be made at a later time or date
  • Consult those important to the person and other professionals
  • See if there are other options that may be less restrictive


Independent Mental Capacity Advocates (IMCA)

If someone lacking capacity is facing decisions about medical treatment or changes in accommodation and is ‘unbefriended’ which means they do not have informal family or friends to support them, there is support available. An IMCA can help them and offer guidance to the decision maker. In Shropshire this is provided by Voiceability,  and Telford and Wrekin this is provided by Pohwer.


Deprivation of Liberty Safeguards (DoLS)

Deprivation of Liberty Safeguards (DoLS) are a set of checks that are part of the Mental Capacity Act 2005, which applies in England and Wales. IT protects a person receiving care whose liberty has been limited by checking that this is appropriate and is in their best interests.

DoLS only apply to people in care homes and hospitals. There is a separate system for people who live and receive care in the community, including their own homes.

These safeguards protect people who are unable to make decisions for them. This may be because of conditions such as:

  • Brain injury
  • Dementia
  • Learning disability
  • Mental disorder.

If you are concerned about somebody and think there should be an authorisation in place, please make a referral to the Local Authority or speak to the person’s nurse or social worker.

If you have any queries about making a DOLs application to the Council they can be contacted by:

01743 255850 – Shropshire:

01952 383054 – Telford and Wrekin


Introducing the Liberty Protection Safeguards (LPS)

The current DOLS scheme will be replaced by the Liberty Protection Safeguards. The Government have yet to announce when this will be implemented. The new scheme will seek to improve ways to ensure that the wishes and feelings of the person are a part of the process and that LPS planning starts a lot sooner when best interest decisions are needed. Further information can be found here.

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Page last updated 28 July 2022