The Mental Capacity Act

The mental capacity act and advance decisions

The Mental Capacity Act & Mental Capacity

Mental capacity is being able to make autonomous decisions, and someone who lacks mental capacity might be unable to make them. The Mental Capacity Act is meant to establish a legal precedent for how to make decisions on behalf of an individual who lacks capacity. It ensures that those decisions support the best interests of such individuals, and one way of doing this is with advance decisions.

What are Advance Decisions?

People with degenerative conditions like dementia will likely experience a decline in mental capacity over time. One way in which the Mental Capacity Act addresses this is with advance decisions. An advance decision is a statement which an individual makes about their choices in anticipation of losing capacity to make decisions.


Advance Decisions & Advance Statements

Advance decisions are concerned with a specific treatment which could be taken in the future, such as the decision to decline resuscitation due to terminal illness. As long as these decisions are made and recorded in accordance with the Mental Capacity Act, they can be legally binding. Advance decisions can more accurately be referred to as ‘advance decisions to refuse treatment’, or ADRTs.

Advance statements are made in more general terms, such as the preference to continue being cared for at home rather than moving to a care home. These are not legally binding, but should inform any future best interest decisions.


How Should ADRTs be formatted under the Mental Capacity Act?

Under the Mental Capacity Act, there is no formal means or format by which a decision needs to be communicated or recorded.

The only requirements are that the decision must relate to a specific treatment and not be a ‘blanket’ refusal of all treatments, for example. It may also set out circumstances in which the refusal should apply, so that there is a possibility of the treatment being desirable in other circumstances. 

Ideally an ADRT should be recorded in writing, but verbal submissions can also be valid. The exception to this is that verbal decisions are not admissible with regard to life-sustaining treatments.


What Information Should be Included in an ADRT?

Even though an ADRT does not need to follow a specific format to be held as valid, it should ideally include the following information:

  • The full details of the person making the decision, i.e. name, date of birth and address as a minimum.
  • Details of the person’s GP and whether they hold a copy of the advance decision.
  • A clear statement of the decision with the treatment specified and any circumstances which should apply to the refusal detailed.
  • The date of the decision along with the signatures of both the person and a witness to the statement.

How do Advance Statements Affect Best Interest Decisions?

The Mental Capacity Act stipulates that anybody determining a best interest decision should consider:

“The person’s past and present wishes and feelings (and, in particular, any relevant written statement made by them when they had capacity)”

The aim of an advance statement is to guide anyone making a best interest decision on behalf of someone who lacks mental capacity.


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