The Mental Capacity Act 2005
is underpinned by five key principles (Section 1, MCA). It is useful to
consider the principles chronologically: principles 1 to 3 will support the
process before or at the point of determining whether someone lacks capacity.
Once you’ve decided that capacity is lacking, use principles 4 and 5 to support
the decision-making process.
Principle 1: A presumption of capacity
Every adult has the right
to make his or her own decisions and must be assumed to have capacity to do
so unless it is proved otherwise. This means that you cannot assume that
someone cannot make a decision for themselves just because they have a
particular medical condition or disability.
Principle 2:
Individuals being supported to make their own decisions
A person must be given all
practicable help before anyone treats them as not being able to make
their own decisions. This means you should make every effort to encourage and
support people to make the decision for themselves. If lack of capacity is
established, it is still important that you involve the person as far as
possible in making decisions.
Principle 3:
Unwise decisions
People have the right to make
decisions that others might regard as unwise or eccentric.
You cannot treat someone as lacking capacity for this reason. Everyone has
their own values, beliefs and preferences which may not be the same as those of
other people.
Principle 4:
Best interests
Anything
done for or on behalf of a person who lacks mental capacity must be done in
their best interests.
Principle 5:
Less restrictive option
Someone making a decision or
acting on behalf of a person who lacks capacity must consider whether it is
possible to decide or act in a way that would interfere less with the
person’s rights and freedoms of action, or whether there is a need to
decide or act at all. Any intervention should be weighed up in the particular
circumstances of the case.
To book our
Mental Capacity Act Conference 2017, please follow this link here
With Guest
Speakers
District Judge
Anselm Eldergill
Dr Mervyn
Eastman
Dr Rainer Kurtz
Lynne Phair
Leonard Lawrence
Dave Sheppard
and Leigh Day
Solicitors
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