Mental Capacity Act – how far we’ve come

By 1st August 2011Media, Mental Capacity Act

Listening to an old You&Yours this morning which was broadcast due to a journalists’ strike, I realised that we have come a long way in 40 years with regards to disabled people’s rights – huge strides as regards physical disability but also for my client group: people who may lack mental capacity.

The Mental Capacity Act of 2005 legislated that people who struggle to make decisions for themselves due to some form of cognitive impairment must be supported to make their own decisions wherever possible. The Act sets out a 4 stage test for capacity:

1. Does the person understand the information involved (for example, do they know what a will entails) ?

2. Can the person weigh up the pros and cons of the decision they are making (for example can they see that leaving more of their estate to one child than another may cause upset further down the line)?

3. Can the person retain the information for as long as is necessary to make the decision (this could be a half hour window) ?

4. Can they communicate their decision?

This test is extremely helpful in all number of situations although obviously cannot be religiously applied for EVERY decision the person makes, there just isn’t time! Where we still have a way to go is getting the message out there – how many people with dementia and their carers actually know about the law and the rights it gives them? Not enough, in my experience.

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