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Mental Capacity and Principles

The presumption is that adults have mental capacity to make informed choices about their own safety and how they live their lives. Issues that affect a person’s ability to make a particular decision may be affected by:

  • Duress and undue influence;
  • Lack of mental capacity.

There may be a fine distinction between a person who lacks the mental capacity to make a particular decision and a person whose ability to make a decision is impaired, e.g. by duress of undue influence. Nonetheless, it is an important distinction to make.

  • People may need additional support to make decisions;
  • Where a person lacks mental capacity for a particular decision, the Mental Capacity (MCA) Act provides the authority to make a best interests decision without consent;
  • Duress and coercion may affect a person’s judgment and ability to make a decision but there remains a presumption of capacity. The person retains the right to make decisions but may need more support to exercise these rights.

Principles of the Mental Capacity Act 2005

The five statutory principles of the MCA are directly applicable to safeguarding and are summarised below:

  1. A person must be assumed to have capacity unless it is established that he lacks capacity. Assumptions should not be made that a person lacks capacity merely because they appear to be vulnerable;
  2. A person is not to be treated as unable to make a decision unless all practicable steps to help him do so have been taken without success. Empower patients to make decisions about managing risks e.g. use communication aides to assist someone to make decisions; choose the optimum time of day where a person with dementia may best be able to evaluate risks;
  3. A person is not be treated as unable to make a decision because he makes an unwise decision. Patients will wish to balance their safety with other qualities of life such as independence and family life. This may lead them to make choices about their safety that others may deem to be unwise but they have the right to make those choices;
  4. An act, or decision made, under this Act for on behalf of a person who lacks capacity must be done, or made, in his best interests. Best interest decisions in safeguarding take account of all relevant factors including the views of the patient, their values, lifestyle and beliefs and the views of others involved in their care;
  5. 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 right and freedom of action. Where a person lacks capacity to make a decision, any restriction and/or use of restraint must be necessary and proportionate and to prevent harm to that person. Safeguarding interventions need to balance the wish to protect the patient from harm with protecting other rights such as right to family life.

An assessment must be made as to whether the living arrangements made for a mentally incapacitated person amount to a deprivation of liberty. If they do, the deprivation has to be authorised (either by the Deprivation of Liberty Safeguards (hospitals/care homes) or by the Court of Protection (domestic settings such as supported living arrangements), and subject to regular independent checks.


It is always essential in safeguarding to consider whether the adult at risk is capable of giving informed consent and if they this should be sought. This may be in relation to:

  • A safeguarding adults investigation going ahead in response to an alert being raised. Where an adult at risk with capacity has made a decision that they do not want action to be taken and there are no public interest or vital interest considerations, their wishes must be respected;
  • A medical examination;
  • An interview;
  • If an activity is considered abuse-if consent to abuse or neglect was given under duress, as a result of exploitation, pressure, fear or intimidation, this apparent consent should be disregarded;
  • The recommendations of an individual protection plan being put in place;
  • Certain decisions and actions taken during the Safeguarding Adults process with the person or people who know about their abuse and its impact on the adult as risk.

If after discussion with the adult at risk who has mental capacity, they refuse intervention, their wishes must be respected unless:

  • There is a public interest, for example, not acting will put other adults or children at risk;
  • There is a duty of care to intervene, for example, a crime has or may be committed.