The 5 Key Principles of the Mental Capacity Act

The Mental Capacity Act 2005 is a set of laws passed by Parliament, designed to protect and empower vulnerable individuals who lack the mental capacity to make their own decisions. It came into force in England and Wales in 2007. Whilst not perfect, they are significant in safeguarding the lives of people who may lack mental capacity.

What Are The five principles of the Mental Capacity Act?

There are five key principles that form the basis of the Mental Capacity Act. These principles are of such importance that they are outlined at the outset, prior to the legal test for determining whether a person lacks mental capacity.

The five key principles of the Mental Capacity Act are:

Presumption of capacity
Support to make a decision
Ability to make unwise decisions
Best interest
Least restrictive

The 4th and 5th principles apply only when a person has been assessed as lacking mental capacity for the decision in question. Whilst it is not a principle of the Act, it is key to remember that mental capacity is time and decision-specific.

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1. Presumption of capacity

The first and most important principle is the presumption of capacity. This means that it is assumed everyone has capacity until proven otherwise. A lack of capacity should not automatically be assumed simply based on a person’s age, appearance, condition or behaviour. Similarly, just because a person has lacked the capacity to make a previous decision, this does not necessarily mean they cannot make the decision in question. For example, a lack of financial capacity does not mean a person lacks the ability to decide where they want to live.

2. Support to make a decision

The supported decision principle requires that all practical steps should be taken to help the person make the decision themselves before treating them as unable to make the decision. This means, in practice, it is essential to consider how and when the person is being asked to make the decision. Is there a time of day when they are more alert? What is the most appropriate way to communicate with them? Have they been provided with all the relevant information? Can location have an effect? Do they need assistance from someone? Often, we can wrongly think a person does not have the capacity, simply because we have not taken the time or effort to explain it in a way they can understand.

3. Ability to make unwise decisions

The third principle states that a person is not to be treated as unable to make a decision merely because they make an unwise decision. This is where the focus of assessing a person’s capacity needs to be on how the person makes the decision rather than the decision itself. In effect, the decision itself should be irrelevant. If we base our assessment of capacity on the decision, then we are applying our own or society’s beliefs and values to the decision, not the person’s.

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In the Mental Capacity Act, both the 4th and 5th principles are only applied under the circumstances that the person in question has already been deemed not to have capacity based on the 1st-3rd principles.

4. Best interest

The fourth principle requires that if a decision is made (or an act done) on behalf of a person without mental capacity, it must be made (done) in their best interest. There is no definitive answer to what is in a person’s best interest, as every decision is unique to the individual and the circumstances involved. Unfortunately, there is no legal definition of best interest.

There is, however, a procedure outlined in Section 4 of the Mental Capacity Act that states the following:

When deciding what is in an individual’s best interests, the decision must not be based only on their age, appearance, condition, or behaviour. All relevant circumstances should be considered, including whether they might regain capacity and encouraging them to participate as much as possible. For life-sustaining treatment, the decision must not be motivated by a wish to cause death. Their past and present wishes, values, and likely views must be taken into account, alongside the opinions of carers, family, and legal representatives where appropriate.

5. Least restrictive

Finally, if a decision is made (or an act is done) on behalf of a person who lacks mental capacity, it should ideally be the least restrictive option that respects the person’s rights and freedoms. Other, less restrictive options should be considered and applied whenever possible.

Read about: The 2-stage test for mental capacity

This article has been produced by Ashtons Legal

Brain Injury Group member firm Ashtons Legal represents Clients nationwide following brain injuries. Ashton Legal’s Medical Negligence team is nationally recognised and has consistently been ranked as top tier for over 20 years by independent sources such as The Legal 500 and Chambers UK.

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