03. Your Right to Make Your Own Decisions
The law assumes you can make your own decisions.
Making a decision is more than having a preference about something.
What the law says
The law assumes that you have the capacity to make your own decisions.
If someone else believes that you do not have sufficient understanding to make a particular decision, the law goes to on explain how this is sorted out.
The law promotes your ability to make decisions for yourself.
How the law looks at it
In law, making a decision is very different from having a preference. Decision-making is a process you have to work through before any doubts about your capacity can be resolved.
This formal way of making an informed decision has four essential stages:
1) You have to understand the information you need to make a decision
2) You have to retain that information
3) You use the information to weigh up the pros and cons and
4) You let people know what decision you've made
If you cannot manage all or any of these stages, then you do not have the capacity to make the decision.
Example 1. Frank, who has learning disabilities and a mental health problem, thinks he'd like to take on a tenancy but is only interested in the flat across the street. He refuses to consider any other alternatives. Because he is not able to weigh information about other places as part of his decision-making, it is likely that he would not have capacity to make this decision about moving.
Example 2. Francine was involved in a bad accident and is in a coma. No-one is sure what her thought processes are, but she is unable to communicate. She does not have the capacity to make any decision because she cannot tell people what her decisions are.
She is able to blink, and her mother realises she can learn to communicate in this way, by one blink for yes, two for no. In this scenario, she would be likely to have capacity for some decisions.
Help to make your own decisions
If you find it difficult to make a decision, you should be given as much help as is practicable.
If you find it difficult to make decisions you should not have this power taken from you unless there is no alternative.
The law says that you cannot be deemed to be incapable of making your own decisions unless you have first been given all practicable help to tackle the processes mentioned above.
The law says you should be helped to make your own decisions.
Example 3. Leslie has learning disabilities and has developed an irregular heartbeat, he has been prescribed medication but is anxious about having regular blood checks as he is scared of needles. At first he is incapable of making a decision because of this fear.
His doctor gives him a leaflet which uses simple language and photos to explain the reason for the tests, the risks in not having the tests, and that Leslie has the right to decide whether or not to have them.
His carer helps him go through the leaflet over the next few days and discusses it with him and checks that he understands it. He is also able to pick out the equipment needed to do the test, and so his doctor concludes that Leslie now has the capacity to make the decision to have the test.
What law is this?
The law is the Mental Capacity Act 2005.
A pdf version of the Mental Capacity is also available for download.
It has a Code of Practice as well, which gives a lot of useful advice on what the law means and practical guidance on how to approach typical situations
The Act itself has to be followed by everyone.
The Code of Practice is not binding law but its advice should be followed by people in relevant groups, e.g. paid carers and professionals. For everyone else, the Code provides sensible advice and a clear explanation of the law.
Who enforces your rights under the Act?
Everyone who has to help other adults with their decision-making has to obey the law and, in this sense, family members, carers, professionals and anyone involved in the welfare of people who lack capacity are all enforcing the Mental Capacity Act.
The body with the legal power to settle disputes and make final decisions about your capacity, or what decisions should be made for you if you can't make them yourself, is the Court of Protection.
The Mental Capacity Act 2005 has to be followed by everyone.
The Court of Protection has the job of making sure the law is followed.
What does the Court of Protection do?
The Court of Protection has the power to make decisions concerning people's capacity, their welfare and their finances.
The Court is usually only involved in cases of difficult decisions or disagreements.
The Court makes decisions about, or on behalf of, people who lack the capacity to make a decision for themselves.
Its main powers include:
1) Deciding whether someone has capacity or not
2) Making orders about welfare or financial matters affecting people who lack capacity to make such decisions,
3) Appointing deputies to make decisions for people who can't do it for themselves.
The principles of the Mental Capacity Act and the advice in the Code of Practice are sufficient to resolve most issues concerning people whose capacity is in doubt or lacking, so that no-one has to go to the Court.
However, the Court of Protection can deal with matters that are particularly difficult, or when disagreements cannot be settled any other way.
For what the Code of Practice says about this, go to chapter 15.
Example 4. Although Frankie has only a moderate learning disability, she is unwilling to consider any alternative accommodation, even though her parents are now very old and need her to move on.
Because she is unable to look at the pros and cons of moving, the Court of Protection decides that she cannot make her own decision about this. The Court decides for her, after taking into account what her family and her social care workers think.
What decisions does incapacity affect?
Your capacity to make your own decisions can depend on how complicated the matter is.
There are some decisions no-one else can take for you.
Your capacity to make a decision or to enter into an agreement (e.g. a contract to buy something or to rent somewhere) can depend as much on the complexity of the agreement as it can on your own level of understanding. The simpler the relevant terms of the agreement are, the harder it is to argue that you don't have the capacity to understand it.
However, any decision can be called into question if someone believes you lack the capacity to make it. Your mental disabilities may be so severe that you cannot take in or process information, particularly where complicated or important matters are concerned.
If decisions need to be taken around your finances or if you need to sign a contract, then you may need the Court of Protection to appoint someone to be your deputy to take the decision on your behalf. For more on this see the Factsheet on about deputies.
Example 5. Eric has a learning disability and is looking at a property that is being offered to him through a local Housing Association's Shared Ownership scheme.
He goes to see a solicitor to ask him to do the legal work. The solicitor takes a view that Eric does not understand what is being offered, nor the legal obligations and liabilities he is being asked to take on. The solicitor is unwilling to proceed until Eric has a deputy to act on his behalf in this matter.
There are some specific decisions, such as making a will, or a gift, taking part in legal cases and entering into marriage, which involve their own tests of capacity.
Are there any decisions that no-one else can take for you?
No-one else can make a decision for you on some personal matters.
- Consenting to marriage or taking a civil partner
- Consenting to have sex
- Consenting to a divorce on the basis of 2 years' separation, or consenting to having a civil partnership dissolved
- Consenting to putting your child up for adoption
- Passing on parental responsibility for a child in matters not relating to adoption
- Giving consent under the Human Fertility and Embryology Act 1990
- No-one else can vote in elections on your behalf if you lack the capacity to vote
The law says that there are some decisions which no-one else can take for you.
Some of these decisions have specific tests to check whether you are capable of making them yourself. There are also safeguards for vulnerable people, particularly around matters of marriage and sex.
When are you unable to make decisions for yourself?
You will not have a legal right to make your own decision if it can be shown that you lack capacity relevant to that decision, even when you have been given all practicable help.
What happens in this situation depends whether or not there is someone with the legal power to make decisions on your behalf (a deputy or an attorney). If there is a deputy or an attorney who can act for you, they have to make decisions for you in your best interests, not in a way that helps them or other people.
Most people do not have a deputy or an attorney but there can still be important decisions that must be made, e.g. where you should live.
Such decisions will be made by those involved in your welfare, e.g. family members, carers, social workers etc. Even when you have to rely on others to make decisions for you they have to follow what the law says.
These rules are:
- They have to make decisions that are in your best interests
- They have to help you take part in the process as much as possible
- They must take into account your wishes, beliefs, and feelings
If you lack capacity to make a decision, other people can do it for you.
This can happen either if someone has legal authority, or by other people acting in your best interests.
Your preferences are important but do not always have to be followed.
If anyone else is making a decision for you because you are unable to make it yourself, any decision they make has to be the best one for you; not for other family members or the local authority, for example.
However, the law says that even though your preferences have to be taken into account when deciding your best interests, the decision does not have to follow those preferences if your best interests would be served in other ways.
Example 6. Michael has severe learning disabilities and lives in a care home. He has dental problems which cause him a lot of pain, but refuses to open his mouth for his teeth to be cleaned.
The staff suggest it would be a good idea to give Michael an occasional general anaesthetic so a dentist can clean his teeth and do any necessary work. His mother is worried about the effects of an anaesthetic, but doesn't like seeing him distressed and thinks painkillers would be better.
Although these two views are important in deciding what course of action would be in Michael's best interests, the decision must be based on what is best for him, not what is less stressful for other people.
After he has talked to others, the dentist tries with the help of a keyworker and an advocate to find the cause and location of the pain and to consider other treatments, eg mouthwash and dental gum. The dentist concludes that it would be in Michael's best interests for a proper investigation to be carried out under anaesthetic so that he can give immediate treatment, and suggest the care team review future options involving Michael as much as possible.
The Mental Capacity Act Code of Practice has more information see, chapter 5.
What can you do if you don't agree about someone else's opinion about your capacity?
No-one can properly claim that you lack capacity to decide any particular issue or course of action unless they have shown that all practicable means of helping you have been used. Until all such means have been exhausted and you are still incapable of making a decision, the law assumes you do have capacity.
If you disagree with someone's opinion that you lack capacity, or about what should be done in your best interest, the Code of Practice suggests various ways of trying to solve this problem see chapter 15 of the Code.
If you disagree with what someone believes about your capacity or your best interests, you can be helped by the Code of Practice. For major problems, the Court of Protection can get involved.
The person who can give a final opinion on these matters is a judge of the Court of Protection, who has the power to deal with all areas of decision-making for people who cannot make decisions for themselves.
The Court will usually only be involved either in specific cases laid down by law (e.g. serious health and treatment decisions); or if you want to challenge a decision that you lack capacity; or when other people disagree amongst themselves about your capacity.
How can I go to court?
Going to court can be expensive and nearly always a last resort, unless it is one of the very serious matters which need a court decision. See chapter 8 of the Code of Practice.
The Office of the Public Guardian which administers much of the Court's work can give general advice but will not be able to discuss the legal merits of any case you might have.
Call the Office of the Public Guardian on 0300 456 0300 or email email@example.com.
If you have the capacity to appoint a solicitor for legal advice and representation at court but have limited money or income, you will need to contact a solicitor who offers legal aid through the Community Legal Services system.
If you lack the capacity to do this, you will need a 'litigation friend'. This is someone who goes to court on your behalf, and this could be a relative or a friend.
For more information on these matters see section 06. of this guide.
Example 7. Steven lived with his father and went to stay in what they both thought was a temporary respite place.
However, the council decided he had to stay because of his 'challenging' behaviour and refused to let him go home.
The Court of Protection's judge said that the council had no lawful basis for keeping him away from his family, and made an order letting Steven go back home.
The council had to find other ways to help Steven, and had to apologise.
Is it different for anyone sectioned under the Mental Health Act?
Different rules apply if you are detained under the Mental Health Act
If you have a mental disorder and are a danger to your own health and safety or that of others, you can be detained to be assessed and then for treatment.
In this sense your rights to make your own decisions are reduced if you are sectioned because you can be told where to live and you can be deprived of your liberty in order to be given care and treatment. A Guardian will be appointed for you to make these decisions, but your preferences and best interests must be taken into account.
People under section have regular reviews of their situation by Mental Health Act Managers. For more about this see the Code of Practice for the Mental Health Act 1983.
People detained under the Mental Health Act may be given medical treatment for any kind of mental disorder.
This can happen even if they do not consent.
The position is different if you are not sectioned but living in a care home and being deprived of your liberty. For more on this see section 06. of this guide.