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The Mental Capacity Act (MCA) enshrines a presumption of capacity in law so that the onus is always on someone intervening to demonstrate that a person lacks capacity rather than requiring them to meet some test or threshold that proves they can make their own decisions. The Act also introduced a decision-specific framework so that a person who struggles with decisions in one arena can maintain their autonomy in others. Hence, citizenship rights are not removed from someone because they cannot make all decisions for themselves and these safeguards were welcomed by user groups and advocacy organisations during its passage into law. It also underpins rights guaranteed by the 1953 European Convention on Human Rights and is consistent with principles set out in the United Nations Convention on the Rights of Persons with Disabilities 2006.
The MCA has a number of components:
- First, it sets out principles to guide people who are assessing capacity and/or making decisions on behalf of others.
- Second, it sets out a decision-specific definition of capacity and a test for assessing whether a person can, at a given time, and with appropriately accessible information and "all practicable support," make this decision for themselves.
- Third, it provides a range of instruments that people can use to state their intentions in advance and designate who they wish to administer their affairs and/or act for them in making welfare decisions, at a future time when they may lack capacity: this they can do through granting a lasting power of attorney in advance or, if these arrangements have not been set in place, the court can appoint a deputy to act for them.
The MCA is based on five core principles, the first three enshrining a person's right to make decisions for themselves unless it can be shown that they are unable to do this for themselves and the last two setting out essential guidance for anyone acting on behalf of someone they have assessed as lacking capacity. The principles are stated as follows:
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.
The right for individuals to be...