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The Mental Capacity Act 2005: A Complete Guide for Care Providers

What the law says about decisions for people aged 16 and over who may lack capacity: the five principles, the capacity test, best interests, planning ahead, deprivation of liberty after the June 2026 Supreme Court ruling, and what CQC expects. Checked against the sources on 19 October 2026.

The Capacity Test What Changed in 2026

The age from which the Act applies, in England and Wales: 16+
Statutory principles in section 1 of the Act: 5
The date the main provisions came into force: 1 Oct 2007
Supreme Court changed the deprivation of liberty test: 2 Jun 2026

By the Care Sync Experts registration team, with a former CQC Senior Inspector Manager with more than 20 years in regulation. Last checked 19 October 2026.

What Is the Mental Capacity Act 2005?

The Mental Capacity Act 2005 is the law in England and Wales that protects and empowers people aged 16 and over who may be unable to make some decisions for themselves. It sets out five principles, a test for whether a person lacks capacity to make a particular decision at a particular time, and how decisions must then be made in their best interests.

Its purpose is to let people make as many of their own decisions as they can, with support, and to make sure that any decision made for them is lawful, necessary and centred on them. It covers everyday choices, such as what to wear, as well as serious ones about care, treatment, money and where to live.

This guide is written for care providers in England, regulated by CQC. It is general information, not legal advice.

At a Glance: The Mental Capacity Act in 2026

What It Is	The law for making decisions by, and for, people aged 16 and over who may lack capacity to make a particular decision
Where It Applies	England and Wales. Scotland and Northern Ireland have their own capacity laws
In Force	Main provisions from 1 October 2007
Core Rules	Five principles (section 1), the test of capacity (sections 2 and 3) and best interests (section 4)
Age Limits	16 and over for most of the Act; 18 and over to make a lasting power of attorney or an advance decision
Code of Practice	The 2007 Code still applies. Professionals and paid carers must have regard to it
Still in Force?	Yes. Its core rules are unchanged in 2026, but the meaning of deprivation of liberty changed on 2 June 2026
CQC Link	Regulation 11 requires providers to act in accordance with the Act when a person aged 16 or over cannot consent

Source: Mental Capacity Act 2005; MCA Code of Practice; Regulation 11.

2026 update

Does the Mental Capacity Act Still Apply in 2026?

Yes. The Act is fully in force and its core rules, including the five principles, are unchanged. What has changed is the law on deprivation of liberty, and some long-promised reforms have still not arrived.

2 June 2026

Supreme Court Redefines Deprivation of Liberty

The Supreme Court decided that the Cheshire West judgment of 2014 was incorrect. The single "acid test" has gone, replaced by an assessment of all the factors, and a person who lacks capacity can sometimes give valid consent to their arrangements. The judgment had immediate effect.

Not yet in force

Liberty Protection Safeguards

The replacement for DoLS was delayed in April 2023. In October 2025 the government said it would consult on it in the first half of 2026 and then lay a final Code of Practice. We could not find a published consultation by 19 October 2026.

Court of Appeal, 2026

Assess When There Is Reason to Doubt

The Court of Appeal held that whenever there is a reason to doubt the capacity of a person whose care and support needs are being assessed under the Care Act 2014, a capacity assessment under the Act must be carried out by an appropriately qualified professional before the needs assessment is completed.

Source: DHSC, deprivation of liberty guidance (updated 22 September 2026); DHSC, 18 October 2025; TDB v Haringey [2026] EWCA Civ 1184.

Section 1

The Five Statutory Principles of the Mental Capacity Act

Every decision under the Act starts with these five principles. The words in quotes are the Act's own; the notes show what each one means for care staff.

Principle 1 · Section 1(2)
Assume Capacity
“A person must be assumed to have capacity unless it is established that he lacks capacity.”
In care practice
Start from the position that the person can decide. Age, appearance, a diagnosis or behaviour is never enough on its own to say they cannot. Only assess when there is a reason to doubt.
Principle 2 · Section 1(3)
Help People to Decide
“A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.”
In care practice
Use plain words, pictures or objects, a better time of day, a quieter place, someone the person trusts and enough time. Record what you tried before anyone concludes the person cannot decide.
Principle 3 · Section 1(4)
Unwise Decisions Are Allowed
“A person is not to be treated as unable to make a decision merely because he makes an unwise decision.”
In care practice
A choice you think is risky is not proof that someone lacks capacity. Explain the risks, record the conversation and keep offering support. Raise a safeguarding concern if there are signs of abuse or neglect.
Principle 4 · Section 1(5)
Best Interests
“An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.”
In care practice
This applies only once a person lacks capacity for that decision. Work through the section 4 checklist, involve the person and consult the people who should be consulted.
Principle 5 · Section 1(6)
Less Restrictive Option
“Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action.”
In care practice
Before you act, ask whether the same purpose could be met in a way that restricts the person less. The Act says you must consider this; it does not say you must always choose the least restrictive option whatever the risk.

Source: Mental Capacity Act 2005, section 1; section 2(3).

Want worked examples of each principle? Read the 5 principles of the Mental Capacity Act explained.

Scope

Who Does the Mental Capacity Act Apply To?

It applies to people aged 16 and over in England and Wales who may lack capacity to make a decision, whether for a short time or permanently, and to everyone who cares for, treats or makes decisions for them.

Who It Protects

Anyone aged 16 or over who may be unable to make a decision because of an impairment of, or a disturbance in the functioning of, the mind or brain. It does not matter whether this is permanent or temporary.

Who Must Follow It

Anyone acting for such a person. Those acting in a professional capacity or for pay, attorneys, deputies and independent mental capacity advocates must also have regard to the Code of Practice.

Where It Applies

England and Wales only. Scotland has the Adults with Incapacity (Scotland) Act 2000 and Northern Ireland has the Mental Capacity Act (Northern Ireland) 2016.

Source: Section 2; section 42(4); section 68.

Age Limits in the Act

16 and over	Most of the Act, including the principles, the test and best interests (section 2(5))
18 and over	Making a lasting power of attorney (section 9) or an advance decision to refuse treatment (section 24)
18 and over	The Deprivation of Liberty Safeguards (Schedule A1) and statutory wills (section 18)
Under 16	The Act does not apply, except that the Court of Protection can deal with property if the child is likely to still lack capacity at 18

Decisions Nobody Can Make for Someone Else

The Act never allows these decisions to be made on a person's behalf, even in their best interests:

Consenting to marriage or a civil partnership
Consenting to sexual relations
Consenting to a divorce or dissolution on the basis of separation
Consenting to a child being placed for adoption, or to an adoption order
Discharging parental responsibilities in matters not relating to a child's property
Giving consent under the Human Fertilisation and Embryology Acts
Voting at an election or referendum (section 29)

Treatment for mental disorder regulated by Part 4 of the Mental Health Act 1983 is also outside the Act (section 28).

Source: Section 18; section 27; section 28; section 29; Schedule A1, paragraph 13.

Sections 2 and 3

What Is Mental Capacity, and How Is It Tested?

A person lacks capacity for a decision if, at the time it needs to be made, they are unable to make it because of an impairment of, or a disturbance in the functioning of, the mind or brain. The Supreme Court has said this is a single test with two questions, taken in this order.

Question 1 · The functional test

Can the Person Make This Decision?

After all practicable help, is the person unable to do any one of these four things? If they can do all four, they have capacity for this decision.

Understand

The information relevant to the decision, explained in a way that suits the person, using simple language, visual aids or any other means.

Retain

That information long enough to make the decision. Being able to hold it for a short time only is enough.

Use or Weigh

That information as part of deciding, including the reasonably foreseeable consequences of each choice, or of not deciding at all.

Communicate

The decision, by talking, sign language or any other means, such as blinking or squeezing a hand.

Question 2 · The causal link

Is That Because of an Impairment of the Mind or Brain?

There must be a clear causal link between the inability and an impairment or disturbance, permanent or temporary. Examples include dementia, a learning disability, a brain injury, a stroke, a mental illness, delirium, or the effects of drugs or alcohol.

A diagnosis alone never proves a lack of capacity. If the person cannot decide for some other reason, the Act's test is not met.

Two Stages or Four?

The 2007 Code calls this a two-stage test and asks about the impairment first. In 2021 the Supreme Court said the functional question comes first. The “four-stage test” people mention is the four abilities; missing any one of them is enough.

Source: Section 2; section 3; A Local Authority v JB [2021] UKSC 52, paragraphs 65 to 79; Code of Practice, chapter 4.

Decision Specific

Someone may be able to choose what to eat but not manage a tenancy. Assess the decision in front of you, never general capacity.

Time Specific

Capacity can change through the day or recover after illness. Ask whether the decision can wait until the person is better able to make it.

Balance of Probabilities

You need to show it is more likely than not that the person lacks capacity, not prove it beyond doubt.

Source: Section 2(1) and 2(4); section 4(3).

In practice

Who Can Assess Mental Capacity, and When?

The Act sets no formal qualification. The person who needs to make the decision, or carry out the act, usually assesses capacity for it, but they need the right skills for that decision.

Everyday Care

The care worker giving personal care, support with meals or medicines assesses capacity to consent to that care, at that time.

Treatment

The doctor, nurse or other professional proposing the treatment or examination assesses capacity to consent to it.

Complex Decisions

Moves, finances or contact may need a social worker, and some cases need a specialist opinion, for example from a psychiatrist, psychologist or speech and language therapist.

Assess when there is a reason to doubt that the person can make the decision: their behaviour or circumstances raise doubt, someone else says they are concerned, or they have a diagnosed impairment of the mind or brain and have already been shown to lack capacity for other decisions. In Care Act assessments, the Court of Appeal requires an appropriately qualified professional to assess capacity whenever there is reason to doubt it.

Source: Code of Practice, chapter 4; TDB v Haringey [2026] EWCA Civ 1184.

Six Steps to a Sound Assessment

Our practical summary, built on the Act and chapter 4 of the Code.

Be Clear About the Decision
Name the specific decision and the realistic options, and when it needs to be made. Capacity is never assessed in general.
Work Out the Relevant Information
The key facts the person needs, including the likely consequences of each option. Not every detail.
Give All Practicable Support
The right time, place and people, communication aids, an interpreter and enough time. Note what helped.
Check the Four Abilities
Use open questions and ask the person to explain back in their own words. One ability missing is enough.
Look for the Causal Link
If the person cannot decide, is that because of an impairment of the mind or brain, or for some other reason?
Record and Review
Write down how you reached your view, and plan a review if capacity may return or fluctuate.

Our advice

What a Good Capacity Record Shows

The decision, the options and when it needed to be made
Why there was a reason to doubt capacity
The information given, and how it was made accessible
The support offered, and anything that helped or did not
What the person said or did for each of the four abilities, in their own words where possible
Whether any inability was caused by an impairment of the mind or brain, and why
The conclusion, the date, and the assessor's name and role
When to review, if capacity may return or fluctuate

A care worker and a family member going through paperwork with an older woman at her table

In People's Own Homes

In home care and supported living, visits are short and staff work alone. Agree in the care plan which decisions may need assessing, and who does it.

Section 4

What Is a Best Interests Decision?

Once a person lacks capacity for a decision, whoever makes it must act in their best interests. Section 4 sets out what that means. The checklist below is the law, not a form.

The Best Interests Checklist

Section 4(1)
Do not decide merely on the basis of the person's age or appearance, or a condition or aspect of their behaviour that might lead others to make unjustified assumptions.
Section 4(2)
Consider all the relevant circumstances.
Section 4(3)
Consider whether the person is likely to regain capacity, and if so when. Can the decision wait?
Section 4(4)
So far as reasonably practicable, permit and encourage the person to take part, or to improve their ability to take part, as fully as possible in the decision.
Section 4(5)
For life-sustaining treatment, do not be motivated by a desire to bring about the person's death.
Section 4(6)
Consider their past and present wishes and feelings (especially any written statement made with capacity), their beliefs and values, and other factors they would consider.
Section 4(7)
Take into account, where practicable and appropriate, the views of anyone they named, their carers and others interested in their welfare, and any attorney or deputy.
Section 1(6)
Ask whether the purpose can be achieved as effectively in a way that is less restrictive of their rights and freedom.

Who Decides?

The decision maker is the person carrying out the act or proposing the treatment, or an attorney or deputy within the powers they hold. Next of kin cannot consent for an adult unless they hold one of those roles; they must be consulted.

When an IMCA Must Be Instructed

An independent mental capacity advocate must be instructed when there is nobody, other than paid carers, whom it would be appropriate to consult, and the decision is about:

Serious medical treatment provided by the NHS
A move into, or between, hospital for 28 days or more, or a care home for 8 weeks or more, arranged by the NHS or a local authority

An IMCA may also be instructed for care reviews and in safeguarding cases.

Source: Section 4; sections 37, 38 and 39; IMCA (Expansion of Role) Regulations 2006.

The Act does not require a formal best interests meeting. It requires the checklist to be followed and the right people to be consulted. Anyone other than the court has complied if, having done that, they reasonably believe the decision is in the person's best interests (section 4(9)).

Planning ahead

Lasting Powers of Attorney, Deputies and Advance Decisions

The Act lets people plan for a time when they cannot decide, and lets the Court of Protection step in when they have not. Check what is in place, and see the documents, before you rely on anyone's authority.

Sections 9 to 14

Lasting Power of Attorney

Two types: health and welfare, and property and financial affairs
The person must be 18 or over and have capacity to make it
It has no effect until it is registered with the Office of the Public Guardian, which costs £92 per LPA and takes 8 to 10 weeks
A health and welfare attorney can act only when the person lacks capacity for that decision
Refusing life-sustaining treatment needs express authority in the LPA
Attorneys must follow the principles and act in the person's best interests

A care worker talking with an older couple and their daughter in a care home lounge

Deputies and the Court of Protection

If there is no attorney, the Court of Protection can make a decision itself or appoint a deputy. The Act prefers a single court decision to a deputy, and a deputy's powers should be as limited in scope and time as is reasonably practicable.

Source: Section 9; section 11; section 16; GOV.UK, register a lasting power of attorney.

Sections 24 to 26 · Binding

Advance Decision to Refuse Treatment

Made by a person aged 18 or over, with capacity, to refuse a specified treatment in the future. If it is valid and applies to the situation, it has the same effect as a refusal made at the time. It can only refuse treatment, not demand it.

Most advance decisions can be spoken. A refusal of life-sustaining treatment must be in writing, signed and witnessed, and state that it applies even if life is at risk.

Section 4(6) · Not binding

Advance Statement

A record of a person's wishes, preferences, beliefs and values, such as how they like to be supported, what they eat or their faith. It is not legally binding, but any relevant written statement made with capacity must be considered in a best interests decision.

Record both in the care plan, and make sure staff know where to find them.

Source: Section 24; section 25; section 26; section 4(6).

Protection and limits

What Protection Do Care Workers Have, and Where Does It End?

The Act protects staff who act properly for a person who lacks capacity. It also sets strict limits on restraint and makes ill-treatment a crime.

Section 5

Protection From Liability

If you take reasonable steps to establish whether the person lacks capacity, and reasonably believe they do and that the care is in their best interests, you are protected as if they had consented. You are still liable for negligence.

Section 6

Limits on Restraint

Restraint includes using or threatening force when the person resists, or restricting their movement whether or not they resist. It is only allowed if you reasonably believe it is necessary to prevent harm to them, and it is proportionate to the likelihood and seriousness of that harm.

Section 44

Ill-Treatment or Wilful Neglect

Anyone caring for a person who lacks capacity, or whom they reasonably believe lacks it, commits an offence if they ill-treat or wilfully neglect them. So do attorneys and deputies. The maximum sentence is five years in prison.

Source: Section 5; section 6; section 44.

Covert medication is a common example. Hiding medicines in food or drink needs a capacity assessment, a multi-disciplinary best interests decision involving care staff, the prescriber and a family member or advocate, with pharmaceutical advice, and a clear record. Read our medication management guide and CQC's guidance on covert medicines.

Deprivation of liberty

Deprivation of Liberty After the June 2026 Supreme Court Ruling

The Act does not let anyone deprive a person of their liberty without authority. On 2 June 2026 the Supreme Court changed what counts as a deprivation of liberty, with immediate effect.

[2026] UKSC 16

The Old Acid Test Has Gone

Since 2014, a person who lacked capacity was deprived of liberty if they were under continuous supervision and control and not free to leave. The Supreme Court has said that was incorrect. No single factor now decides it; these are weighed together:

The type of restrictions
How long they last
Their effects on the person
How they are put into practice
Whether the person objects
How far the situation is from detention in a prison cell
How normal the arrangements are
The purpose of the arrangement

Valid Consent Without Capacity

A person who lacks capacity under the Act may still give valid consent to their arrangements if they are conscious of their environment, have a basic level of understanding, and can express a view that they accept or are happy with the situation. If there is serious doubt, no conclusion of valid consent can be drawn, and going along with care is not the same as consent.

What Stays the Same

DoLS still covers hospitals and care homes for people aged 18 and over. In supported living, people's own homes and for 16 and 17 year olds, authorisation still comes from the courts. Where a person with a DoLS authorisation may no longer be deprived of their liberty, it should be reviewed as soon as is practicable. CQC says the Act and Regulation 11 are unchanged.

Source: DHSC guidance (first published 15 June 2026, updated 22 September 2026); Supreme Court, case UKSC 2025/0042; CQC statement, 8 June 2026; section 4A.

DoLS in Numbers: England, 2024 to 2025

364,900

DoLS applications received, up 9.8% on the year before

118,850

Applications not completed at 31 March 2025

21.1%

Standard applications completed within the 21 day limit

126days

Average time to complete an application

Source: DHSC, Deprivation of Liberty Safeguards, England, 2024 to 2025 (26 March 2026). These figures are from before the June 2026 ruling.

For applications, the six assessments and notifications, read our Deprivation of Liberty Safeguards guide. The Liberty Protection Safeguards, meant to replace DoLS, are still not in force.

Two different laws

Mental Capacity Act vs Mental Health Act

People often confuse them. The Mental Health Act 1983 is about treating mental disorder; the Mental Capacity Act is about decisions when a person lacks capacity.

Question	Mental Capacity Act 2005	Mental Health Act 1983
What It Is For	Mental Capacity Act:Decisions for people who lack capacity to make a particular decision	Mental Health Act:Assessment and treatment of mental disorder, including detention in hospital
Does Capacity Matter?	Mental Capacity Act:Yes. It applies only where a person lacks capacity for the decision	Mental Health Act:No. A person can be detained and treated whether or not they have capacity
Who It Covers	Mental Capacity Act:People aged 16 and over who may lack capacity	Mental Health Act:People with a mental disorder who meet the criteria for detention or treatment
Who Decides	Mental Capacity Act:The decision maker, attorney, deputy or Court of Protection, in the person's best interests	Mental Health Act:Approved professionals and clinicians, with safeguards such as the Mental Health Tribunal

Source: Mind, about the Mental Capacity Act; section 28.

The Mental Health Act 2025 received Royal Assent on 18 December 2025. It amends the 1983 Act rather than replacing it, and most of its changes are not yet in force.

Regulation

What CQC Expects: The Mental Capacity Act and Regulation 11

CQC monitors how the Act is used in every health and care service in England, and how DoLS is used in care homes and hospitals. Three regulations link directly to it.

Regulation 11

Need for Consent

“If the service user is 16 or over and is unable to give such consent because they lack capacity to do so, the registered person must act in accordance with the 2005 Act.”

Source: Regulation 11, 2014 Regulations.

Regulation 13(5)

Safeguarding

“A service user must not be deprived of their liberty for the purpose of receiving care or treatment without lawful authority.”

Source: Regulation 13(5), 2014 Regulations.

Regulation 18

Notifications

Registered providers must tell CQC the outcome of each application to deprive a person of their liberty.

Source: CQC, Regulation 18.

Effective · Quality statement

Consent to Care and Treatment

“We tell people about their rights around consent and respect these when we deliver person-centred care and treatment.”

CQC assesses consent, including how the Mental Capacity Act is applied, under the Effective key question. After the June 2026 ruling, CQC said it would take a proportionate approach in its assessments.

Source: CQC, consent to care and treatment; CQC, MCA and DoLS; CQC, 8 June 2026.

Our advice

Provider Checklist

What we check when we prepare providers for registration or a mock inspection.

An MCA policy that reflects the June 2026 deprivation of liberty ruling
Care plans that record consent, and any capacity assessment, decision by decision
Copies of lasting powers of attorney, deputyship orders and advance decisions checked and filed
Best interests records that show the checklist and who was consulted

Restrictive practices recorded, reviewed and reduced where possible
DoLS authorisations and their conditions tracked, and reviewed since June 2026
DoLS outcomes notified to CQC
Staff trained in the Act for their role, with regular audits of records

Watch

When an Attorney Says No to Professional Input

A one-minute video from our team on a situation care managers meet often: a family member with a health and welfare lasting power of attorney refuses OT, physiotherapy or GP involvement.

What the video covers

An attorney can only make decisions in the person's best interests
If a refusal puts the person at risk, you have a duty to challenge it
Record your concerns and escalate within your organisation
Make a safeguarding referral to the local authority if needed

Myth or fact

Common Myths About the Mental Capacity Act

These are the misunderstandings we meet most often in care services, training and family conversations.

Myth
There Are 10 Core Principles
Fact
The Act has five statutory principles, in section 1. Lists of 10 are training summaries, not the law.
Myth
Next of Kin Can Consent for an Adult
Fact
Only an attorney or deputy with the right powers can decide for someone. Family must be consulted, but cannot consent on their own authority.
Myth
Only a Doctor Can Assess Capacity
Fact
The person making the decision usually assesses it. Care workers assess capacity for the care they give.
Myth
An Unwise Decision Shows a Lack of Capacity
Fact
Section 1(4) says it does not. Explain the risks, record the conversation and keep supporting the person.
Myth
A Diagnosis of Dementia Means No Capacity
Fact
A diagnosis alone never proves it. Assess the specific decision, at the time it needs making.
Myth
Advance Decisions Must Always Be Written
Fact
Only a refusal of life-sustaining treatment has to be written, signed and witnessed. Others can be spoken.
Myth
Supervision Plus Not Free to Leave Always Means a Deprivation of Liberty
Fact
Not since 2 June 2026. All the factors are now weighed together, and some people can give valid consent.
Myth
You Must Always Choose the Least Restrictive Option
Fact
Section 1(6) says you must consider a less restrictive option. It is not an absolute rule.

Source: Mental Capacity Act 2005; Code of Practice; DHSC, June 2026 guidance.

How Care Sync Experts Can Help

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Related Guides

Sources

Every legal rule, quote and statistic in this guide comes from these pages, checked on 19 October 2026. Where we give practical advice or describe our own service, we say so. This guide is general information, not legal advice.

Law

Court Judgments

Government Guidance and Data

CQC and Others

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Frequently Asked Questions

It is the law in England and Wales that protects and empowers people aged 16 and over who may be unable to make some decisions for themselves. It says people must be assumed to have capacity, must be helped to decide, and can make unwise decisions. If someone lacks capacity for a particular decision, anything done for them must be in their best interests, and a less restrictive option must be considered.

To let people make as many of their own decisions as they can, with support, and to provide a lawful framework for decisions made on behalf of people who lack capacity to make a particular decision. It covers everyday decisions as well as serious ones about care, treatment, money and where to live.

From 16. No power under the Act can be used for a person under 16, except that the Court of Protection can make decisions about the property of a child who is likely to still lack capacity at 18. Some parts need the person to be 18 or over: making a lasting power of attorney, making an advance decision to refuse treatment, the Deprivation of Liberty Safeguards and statutory wills.

They are set out in section 1: (1) a person must be assumed to have capacity unless it is established that they lack it; (2) a person is not treated as unable to decide unless all practicable steps to help them have been taken without success; (3) making an unwise decision does not mean a person lacks capacity; (4) anything done for a person who lacks capacity must be in their best interests; and (5) before acting, consider whether the purpose can be achieved in a way that is less restrictive of their rights and freedom of action.

No. The Act has five statutory principles, all in section 1. Lists of 10 core principles found in some training materials are summaries, not part of the law.

You must take all practicable steps to help them make the decision themselves, such as explaining in plain language or with pictures, choosing a better time or place, involving someone they trust and giving them enough time. Only if those steps fail can you conclude they are unable to decide (section 1(3)).

The Act asks whether the person is unable to make the decision, and whether that is because of an impairment of, or a disturbance in the functioning of, the mind or brain. The 2007 Code of Practice calls this a two-stage test and asks about the impairment first, but in A Local Authority v JB [2021] UKSC 52 the Supreme Court said the functional question should be asked first, followed by whether there is a causal link to an impairment.

A person is unable to make a decision if they cannot do any one of these: understand the information relevant to the decision, retain that information, use or weigh it as part of deciding, or communicate the decision by any means (section 3). These are sometimes called the four pillars or the four-stage test.

Usually the person who needs to make the decision or carry out the act. A care worker assesses capacity for the care they are about to give, a doctor or nurse for the treatment they propose, and a social worker for care and support arrangements. The Act sets no formal qualification, and family carers do not have to be experts, but the assessor needs the right skills for the decision. Complex decisions may need a specialist opinion, and in Care Act assessments the Court of Appeal requires an appropriately qualified professional.

No. Section 1(4) says a person is not to be treated as unable to make a decision merely because it is unwise. Explain the risks, record the conversation and keep offering support, and raise a safeguarding concern if you suspect abuse or neglect.

Section 4 of the Act. The decision maker must not decide merely on the basis of the person's age or appearance, or a condition or behaviour that might lead to unjustified assumptions; must consider whether the person may regain capacity; must involve the person as fully as possible; must consider their past and present wishes and feelings, beliefs and values; and must take into account, where practicable and appropriate, the views of anyone they named, carers, attorneys and deputies. For life-sustaining treatment they must not be motivated by a desire to bring about death.

Not as next of kin. Only an attorney under a registered lasting power of attorney, or a deputy appointed by the Court of Protection, can decide within the powers they hold. Family members must be consulted in a best interests decision, but the decision maker is otherwise the professional or carer proposing the care or treatment.

Nobody can make these for someone else under the Act: consenting to marriage or a civil partnership, sexual relations, divorce or dissolution, adoption, discharging parental responsibilities (other than property matters), consents under the Human Fertilisation and Embryology Acts, and voting. Treatment regulated by Part 4 of the Mental Health Act 1983 is also outside it.

An independent mental capacity advocate must be instructed when a person lacks capacity, there is nobody other than paid carers whom it would be appropriate to consult, and the decision is about serious medical treatment by the NHS, or a move into hospital for 28 days or more or a care home for 8 weeks or more arranged by the NHS or a local authority. An IMCA may also be instructed for care reviews and safeguarding cases.

It makes it a criminal offence for anyone caring for a person who lacks capacity, or whom they reasonably believe lacks capacity, to ill-treat or wilfully neglect them. It also covers attorneys and deputies. The maximum sentence is five years in prison, a fine, or both.

Yes. The Act and its five principles are fully in force and the 2007 Code of Practice still applies. On 2 June 2026 the Supreme Court changed what counts as a deprivation of liberty, replacing the Cheshire West acid test with an assessment of all the factors. The Liberty Protection Safeguards are still not in force.

No. The Liberty Protection Safeguards were delayed in April 2023 and are not in force. In October 2025 the government said it would consult on them in the first half of 2026, but we could not find a published consultation by 19 October 2026. DoLS still applies in hospitals and care homes for people aged 18 and over, and the courts authorise deprivations of liberty in other settings.

Regulation 11 says care and treatment must only be provided with the consent of the relevant person, and that if a person aged 16 or over cannot consent because they lack capacity, the provider must act in accordance with the Mental Capacity Act. CQC looks at consent under the Effective key question, and providers must notify CQC of the outcome of DoLS applications.

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