The Mental Capacity Act (MCA) is designed to protect and empower individuals who may lack the mental capacity to make their own decisions about their care and treatment and applies to individuals aged 16 and over. . It also allows for people to plan ahead if they think they may lack capacity in the future.
Having mental capacity means being able to understand and retain information and to make a decision based on that information.
However, just because a person has one of these conditions does not necessarily mean they lack the capacity to make a specific decision.
The law aims to ensure that people who lack capacity to make decisions by themselves get the support they need to be as involved as possible in decisions about their lives. It also outlines how an assessment of mental capacity should be made, in which situations other people can make decisions for someone who cannot act on their own and how people can plan ahead in case they become unable to make decisions in the future.
Someone can lack capacity to make some decisions (for example, to decide on complex financial issues) but still have the capacity to make others.
There are five principles at the heart of MCA which should be used to underpin all actions and decisions taken in relation to those who lack capacity:
- Everyone has the right to make their own decisions. Care professionals should always assume an individual is able to make decisions, unless a capacity assessment is carried out and proves otherwise.
- A person must be given help to make a decision. This might include, for example, providing the person with information in a manner that is easier for the individual to understand.
- A person is not to be treated as unable to make a decision merely because he/she makes what others might see as an unwise decision.
- Where someone is judged not to have the capacity to make specific decisions (following a capacity assessment), that decision can be taken on their behalf, but it must be in the person’s best interests.
- The resulting treatment and care provided should be the least restrictive to the person’s basic rights and freedoms as possible.
The MCA also allows people to express their preferences for treatment and care, as well as allowing the individual to appoint a trusted person (Lasting Power of Attorney) to make the decision on their behalf should the person lack the capacity to make decisions in the future.
The National Mental Capacity Act Competency Framework can be download from Mental Capacity Toolkit - NCPQSW
Find out more about the Legislation by clicking here: Mental Capacity Act
Watch the SCIE Video Resource - About the MCA
Watch the SCIE Video Resource - Overview Using the MCA
When a person lacks mental capacity to consent to specific care or treatment arrangements, restrictions may sometimes be necessary to keep them safe and meet their care needs. Where those arrangements may amount to a deprivation of liberty, they must be lawful, necessary, proportionate, in the person’s best interests, and subject to appropriate safeguards. The Deprivation of Liberty Safeguards are part of the Mental Capacity Act 2005 framework and apply to people aged 18 or over in care homes and hospitals. They are intended to protect people from being deprived of their liberty where this is not necessary or in their best interests, prevent arbitrary detention, and ensure that the person has safeguards including representation, review and the right to challenge the authorisation.
A deprivation of liberty should be avoided wherever possible. Where restrictions are required, they should be the least restrictive option, used for the shortest necessary time, and linked to the person’s individual care or treatment arrangements. If a hospital or care home believes that a person’s care arrangements may amount to a deprivation of liberty, it must request authorisation from the local authority, acting as the supervisory body. The local authority will arrange the required assessments and decide whether the authorisation can be granted. If the requirements are not met, the arrangements must be reviewed and changed, otherwise there is a risk of an unlawful deprivation of liberty.
In assessing whether arrangements amount to a deprivation of liberty, practitioners should not rely solely on the previous Cheshire West “acid test”. Following the UK Supreme Court judgment of 2 June 2026, the assessment is multifactorial and must consider the person’s specific circumstances, including the nature, type, duration, effects and manner of the restrictions, whether the person is under supervision and control, whether they are free to leave, and the person’s wishes, feelings and apparent consent or objection. No single factor is determinative, and each case must be considered individually. Where the arrangements are outside a care home or hospital, authorisation must be sought from the Court of Protection rather than through DoLS.
A deprivation of liberty without the appropriate legal authorisation may be unlawful
If you think someone is being deprived of their liberty without authorisation, contact the DoLS Coordinator for Warrington Adult Social Care 01925 443322
Find out more:
Independent Mental Capacity Advocacy (IMCA) Service
IMCA’s are an important safeguard for people who lack capacity to make some important decisions. Their role is to help ensure that decisions are reached in the person’s best interests, taking into account their views, wishes, beliefs and values. The IMCA role is to support and represent the person in the decision making process. They do not make decisions on the person’s behalf but do make sure that the Mental Capacity Act is being followed.
IMCA’s are commissioned by the local authority and can only be instructed by local authorities or the NHS. There is no charge to individuals receiving the service.
An IMCA will not usually be needed when someone has family, friends or others who can represent the person, but there will be some exceptions to this.
Power of Attorney
The Mental Capacity Act sets out a range of ways by which people can plan for a time when they are no longer able to make decisions for themselves.
A lasting power of attorney (LPA) is a legal document which allows individuals to give people they trust the authority to manage their affairs if they lack capacity to make certain decisions for themselves in the future.
To set up an LPA a person must be 18 or over, and have the mental capacity to decide to do so. The person the LPA is set up for is known as the donor.
The person chosen to make decision on behalf of the donor is known as the attorney. The attorney must also be over 18 and must themselves have the mental capacity to act as an attorney. For property and financial affairs LPAs, the attorney must not be bankrupt.
A donor can appoint anyone they like as an attorney provided they are an adult with mental capacity, and not bankrupt if appointed for a property and financial affairs LPA. Typically, family members or close friends are chosen. Some people may choose to appoint professionals (for example, solicitors or accountants) to act as their property and finance attorney.
If there is more than one attorney, the donor can decide whether the attorneys must act either:
- ‘jointly’ – which means all decisions must be made together
- ’jointly and severally’- where some decisions have to be made together, but some can be made separately.