The Mental Capacity Act 2005 (MCA): The First Key Principle – A Presumption of Capacity

The Mental Capacity Act is ‘An act to make new provision relating to persons who lack capacity’ and came into force in 2005. It is accompanied by the Code of Practice, issued by the Lord Chancellor on 23 April 2007. The Code of Practice describes the ‘Act’ as ‘vitally important and one that will make a real difference to the lives of people who may lack mental capacity.’

In the first of five blogs relating to Mental Capacity and its key principles, I want to explore one of the most important ideas in the Mental Capacity Act 2005 (MCA) – the presumption of capacity. The principle means that every adult is assumed to have the ability to make their own decisions unless proven otherwise. Understanding the application of principles to Attorneys and Deputies will be the focus of the five blogs.

If you are appointed as Attorney or Deputy* to act on behalf of the donor or protected party i.e. the person without capacity, consideration should be given to the First Key Principle when decisions need to be made. It encourages us to ensure that we have assessed whether the person is able to make a specific decision rather than assuming that because they have been diagnosed with a cognitive impairment, for instance, that they have no capacity to make any decision. The Code of Practice and the First Key Principle speaks to the Act’s ability to empower to make their own decisions, wherever possible and crucially to be able to plan.

The MCA changes the emphasis so that the default position is always in favour of the individual’s own ability to choose. This legal principle encourages us to support rather than intervene.

Ultimately, the presumption of capacity reminds us that every person has the right to participate in decisions about their own life. The Presumption of Capacity helps maintain balance between assistance and independence. It serves as a powerful reminder that our judgments should be based on careful assessment, ensuring that no one is unfairly deprived of their voice every time.

*further details around Attorney and Deputy authority coming in blog 2.

Roswyn Bradshaw is a Court of Protection and Caseworker Manager in the private client team at Barker Gotelee Solicitors in Suffolk. 

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