# The Mental Capacity Act 2005

The Mental Capacity Act 2005 provides a legal framework in England and Wales for decision making on behalf of people aged 16 or over who cannot make decisions for themselves. [The Mental Capacity Code of Practice](https://assets.publishing.service.gov.uk/media/5f6cc6138fa8f541f6763295/Mental-capacity-act-code-of-practice.pdf) sets out guidance and information about how the Act works in practice. This applies to all people in the UK across a number of situations including medical treatment and caring situations.

The Act sets out the legal test for people that may lack decision-making capacity and governs what should happen for those people who do not have capacity. Where a person lacks capacity, it is possible for others to take a decision for them and this should be made in their best interests.

The legal test for decision-making capacity is set out in two stages:

1. **Does the person have an impairment of, or a disturbance in the functioning of their mind or brain?** The Code of Practice explains this as “the person has an impairment of the mind or brain, or some sort of or disturbance that affects the way their mind or brain works.” This is a broad test, but some examples can include mental illness, significant learning disabilities, symptoms of alcohol or drugs use.
2. **Does the impairment or disturbance mean that the person is unable to make a specific decision when they need to?** A person is unable to make a decision if they cannot:

* understand information about the decision to be made.
* retain that information in their mind.
* use or weigh that information as part of the decision-making process.

A further factor is whether the person can communicate their decision.&#x20;

This second stage can only be met if the person has been given all practical and appropriate support and appropriate amounts of information to be able to make the decision, but despite this, at least one of these elements cannot happen.&#x20;

The legal framework sets out that decision-making capacity may fluctuate depending on the person’s condition, and any determination of capacity is specific to the decision itself. In other words, there is not a general determination that a person lacks capacity, this is an issue to be addressed with each individual decision.

<table data-header-hidden><thead><tr><th valign="top"></th></tr></thead><tbody><tr><td valign="top"><p>The principles that govern working with people under the Act are:</p><p></p><ol><li>A person must be assumed to have capacity unless it is established that they lack this.</li><li>A person is not to be treated as unable to make a decision unless all practicable steps to help them to do so have been taken without success.</li><li>A person is not to be treated as unable to make a decision only because they make an unwise decision.</li><li>Actions taken under the Act for or on behalf of a person who lacks capacity must be done in the person’s best interests and the approach be as least restrictive of the person’s rights and freedom of action.</li></ol></td></tr></tbody></table>

The Act also set up an Independent Mental Capacity Advocate service to provide independent safeguards for people who lack capacity to make important decisions and, at the time such decisions need to be made, have no-one else (other than paid staff) to support or represent them or be consulted. This applies to people who are facing issues about medical treatment or a long-term residential move.

#### The environment of detention and decision-making capacity

&#x20;It is important to recognise that whether a person has capacity needs is considered in relation to each specific decision they are faced with. Here the fact that the person is held in detention may have an effect. One factor to consider is that detention has been shown to cause or exacerbate mental illness which may then affect whether a person has decision-making capacity. The Mental Capacity Act 2005 also requires that people should be given all practical and appropriate support to make decisions. This approach may be more difficult to adopt within the limitations and stresses of a detention environment.

#### Application of decision-making capacity issues in immigration detention&#x20;

[The Detention Service Order for mental vulnerability and immigration detention](https://www.gov.uk/government/publications/mental-vulnerability-and-immigration-detention/detention-services-order-042020-mental-vulnerability-and-immigration-detention-accessible-version) relies on detention staff to identify people who may lack capacity, draw this to the attention of the IRC duty manager and the vulnerability lead (onsite supplier manager in STHFs) and request an assessment by the healthcare department. There is also an obligation to share the initial information that capacity may be a concern internally within the Home Office using a form called IS91RA. This then triggers a review of the person’s detention and recognition that the person falls within the Adults at Risk policy.

When a person is assessed by healthcare this can lead to more information about them including recognition that the person needs further support or has other vulnerabilities. This is information must be relayed to the Home Office and triggers a further review of detention in line with the Adults at Risk policy. If detention is maintained, then a vulnerable adult care plan should be completed (see [healthcare-screening-assessment-and-monitoring](https://avid-detention.gitbook.io/avid-handbook/safeguards/policy-and-practice/healthcare-screening-assessment-and-monitoring "mention") for more information on vulnerable adult care plans).&#x20;

The policy also places an obligation on the member of staff to help the person to access legal representation.

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**Key Documents**

[Guidance on mental vulnerability and immigration detention](https://www.gov.uk/government/publications/mental-vulnerability-and-immigration-detention/detention-services-order-042020-mental-vulnerability-and-immigration-detention-accessible-version) (July 2023)

[Mental Capacity Code of Practice](https://assets.publishing.service.gov.uk/media/5f6cc6138fa8f541f6763295/Mental-capacity-act-code-of-practice.pdf) (2007)
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