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Making choices when you have SEND - Mental Capacity Act 2005

When a young person reaches 16 years old, they have a right to make their own decisions.  This is something which is stated by law in the Mental Capacity Act.

Everyday people make decisions, some are small like what food to eat and some are big like which college to go to or where they want to live.

Some people can make all decisions themselves, some can make a few and some people find it hard to make any decisions at all and need someone else to do it for them.  People with learning disabilities or special educational needs can sometimes find it hard to make decisions.

The ability to make decisions can depend on circumstances, such as health conditions.

The Mental Capacity Act (the Act) is there to help.  It applies to everyone older than aged 16.  The Act presumes that everyone older than 16 is able to make their own decisions.

This video helps to explain the Mental Capacity Act

How the Mental Capacity Act works

Under the Mental Capacity Act the issue of capacity is decision-specific; this means that the test of someone’s capacity can only be made in relation to a particular decision that needs to be made at a particular time.

For example, if a young person was going into hospital for an operation and had to make a decision about the type of anesthetic they had, the medical professionals involved at the time would consider that person's capacity to make that decision.

This is an important safeguard against blanket assessments of someone’s ability to make decisions based on their disability or condition. It also recognises the fact that someone may be able to make some decisions but not others.  

This could be fairly small decisions such as what we eat or the clothes we wear, or could be much bigger decisions, for example where we live and who we live with. Capacity is based on a single decision at a single time, so some people may have fluctuating capacity, meaning they can make a decision one day and not the next depending on their wellbeing.

The Mental Capacity Act 2005 sets out what should happen when people are unable to make one or more decisions for themselves. It clarifies the roles that different people play in decision-making, including family carers, and establishes a Court of Protection which acts as the ultimate arbiter about mental capacity issues.

The parents or carers of a young person who is unable to make a decision are likely to be involved in:

  • Supporting them to make a significant decision
  • Supporting during an assessment of their mental capacity
  • Making a decision or acting on their behalf
  • Being consulted when someone else makes a decision or acts on behalf of their young person
  • Challenging a decision made on a relative’s behalf

The Mental Capacity Act has five basic rules when it comes to making decisions:

  1. Always assume the person is able to make the decision until you have proof they are not.
  2. Try everything possible to support the person make the decision themselves.
  3. Do not assume the person does not have capacity to make a decision just because they make a decision that you think is unwise or wrong.
  4. If you make a decision for someone who cannot make it themselves, the decision must always be in their best interests.
  5. Any decisions, treatment or care for someone who lacks capacity must always follow the path that is the least restrictive of their basic rights and freedoms.

"If you are a parent/carer and you are concerned about the mental capacity of a young person to make a decision, then you need to discuss this with whichever professional is involved where a  decision needs to be made."

If the young person has a social worker and you feel they may not be able to make their own decisions after the age of 16, talk to the social worker for advice on mental capacity.

If you think that a social worker should be involved, then please speak with Gateway to Care on 01484 414933 or click on the link at the bottom of this page.

If the young person has involvement from CAMHS, you should speak with the person from CAMHS whom is working with the young person.

For children under 16, the Mental Capacity Act does not apply.  Instead a child needs to be assessed whether they have enough understanding to make up their own mind about the benefits and risks of treatment – this is sometimes termed ‘Gillick competence’ and means that the child has the  competency to give consent and make decisions.

The term Gillick competence is usually used when considering medical treatments.

The Deprivation of Liberty Safeguards (DoLS), referred to as 'safeguards' are part of the Mental Capacity Act (2005). They aim to protect people in care homes and hospitals from being inappropriately deprived of their liberty. The safeguards have been put in place to make sure that a care home or hospital only restricts someone's liberty safely and correctly, and that this is done when there is no other way to take care of that person safely.

More information about DoLS can be found on the Deprivation of Liberty Safeguards (DoLS) page on the Kirklees website (opens a new page).

The Liberty Protection Safeguards will provide protection for people aged 16 and above who are or who need to be deprived of their liberty in order to enable their care or treatment and lack the mental capacity to consent to their arrangements.

People who might have a Liberty Protection Safeguards authorisation include those with dementia, autism and learning disabilities who lack the relevant capacity.

The Liberty Protection Safeguards were introduced in the Mental Capacity (Amendment) Act 2019 and will replace the Deprivation of Liberty Safeguards system.

The Liberty Protection Safeguards are planned to come into force in April 2022.

More information about Liberty Protection Safeguards can be found in the Liberty Protection factsheet (opens a PDF in a new page).

Last updated: 30/11/2021

Useful links

Mencap Website - The Mental Capacity Act

Mencap Website

Mental Capacity Act - Easy Read Guide

Mental Capacity Act 2005 Easy Read Guide Mental Capacity Act - Making Decisions

Govement mental capacity act

Council for Disabled Children - Mental Capacity Factsheet

Council for disbaled children website

NHS - Mental Capacity Act

NHS mental capacity act

Contact Adult social care

Adult social care services