The Mental Capacity Act 2005 is the law a home care agency in England or Wales uses when someone may not be able to decide about their own care. It applies to a particular decision at the time that decision has to be made. It is not a label that attaches to a diagnosis and then covers the whole week.
This guide is for a registered manager or a coordinator. Scotland and Northern Ireland have their own statutes, set out below. The summary follows the Act, the Mental Capacity Act Code of Practice, and the pages the Care Quality Commission and the Department of Health and Social Care publish beside them. Apply it to a live case with your own advice.
In England, Regulation 11 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 says care and treatment may be provided only with the consent of the relevant person. If the person is 16 or over and cannot give that consent because they lack capacity, the registered person must act in accordance with the 2005 Act. CQC's guidance on that regulation, updated on 16 May 2025, says CQC can prosecute for a breach, or part of a breach, without first serving a warning notice, and that it must refuse registration if a provider cannot satisfy it that they can and will continue to comply.
Section 42 puts a duty on certain people to have regard to the Code when they act in relation to a person who lacks capacity. The duty covers anyone acting in a professional capacity, and anyone acting for remuneration. The Code names care workers providing domiciliary care services as people in that second group. Having regard to the Code means being aware of it and being able to explain how it was taken into account. The Code also says the Act does not impose a duty to comply with the Code as if it were an instruction. A court or tribunal can take the Code, or a failure to follow it, into account.
One decision, at one time
Section 2 says a person lacks capacity in relation to a matter if, at the material time, they are unable to make a decision for themselves in relation to that matter because of an impairment of, or a disturbance in the functioning of, the mind or brain. The impairment or disturbance may be permanent or temporary. A lack of capacity cannot be established merely by reference to the person's age or appearance, or to a condition, or an aspect of their behaviour, that might lead others to make unjustified assumptions.
The Code uses the words "a person who lacks capacity" for one decision at the time it has to be taken. Someone may be able to choose what to eat and unable to decide whether to move house. Someone who cannot decide at 7am may be able to decide later the same day. Section 2(5) says a power under the Act is not exercisable in relation to a person under 16. The exception in section 18(3) is a Court of Protection power over property and affairs, where the court considers it likely the child will still lack capacity for that matter at 18. It is not a power for a carer on a visit.
Before anyone concludes that the person cannot decide, section 1 requires that all practicable steps to help them have been tried without success. The Code's questions at paragraph 4.36 are the practical version of that duty. Has the person been given the information they need, including the options? Would another explanation, another time of day, or another place make a difference? Can the decision wait? Can someone who knows how this person communicates help them express a view?
Section 3 then sets the functional test. The person is unable to make the decision if they are unable to do any one of these:
| What the Act asks | What it adds |
|---|---|
| Understand the information relevant to the decision | That information includes the reasonably foreseeable consequences of deciding either way, or of not deciding. An explanation in simple language, with visual aids, or by any other means that fits the person, counts as understanding |
| Retain that information | Retaining it for a short period only does not, by itself, mean the person cannot decide |
| Use or weigh that information | As part of the process of making the decision |
| Communicate the decision | By talking, using sign language, or any other means |
For most day-to-day decisions, the Code says the assessor is the person directly concerned at the time. Its example is a care worker assessing whether the person can agree to being bathed. A district nurse assesses consent to a dressing change. For a more complex decision the Code says a professional opinion may be needed, from a psychiatrist, psychologist, speech and language therapist, occupational therapist or social worker. The final decision about capacity still sits with the person who intends to carry out the act, not with the professional who advises.
An unwise decision is not, by itself, a lack of capacity. That is section 1(4). The Code says nobody can be forced to undergo an assessment of capacity, and that if someone refuses to open the door it cannot be forced. A warrant under section 135 of the Mental Health Act 1983 is a separate route, and only where that section's conditions are met. The Code says simply refusing an assessment of capacity is not sufficient grounds for an assessment under that Act.
The five principles
Section 1 sets the principles that apply for the purposes of the Act.
| Principle | What it requires on a visit |
|---|---|
| Assume capacity | Start from the assumption that the person can decide, until the section 2 test is met |
| Help the person decide | Try the practicable steps before you treat them as unable to decide |
| Unwise decisions | A choice you would not make is not a finding of incapacity |
| Best interests | Anything done for a person who lacks capacity for that decision has to be in their best interests |
| Less restriction | Ask whether the purpose can as effectively be achieved in a way that restricts the person's rights and freedom less |
What a carer may do, and what best interests means
Section 5 is the protection for an act done in connection with care or treatment. It applies where, before doing the act, the carer takes reasonable steps to establish whether the person lacks capacity in the matter, and when doing the act reasonably believes both that the person lacks capacity and that the act is in their best interests. The carer then does not incur any liability they would not have incurred if the person had had capacity and had consented. The section does not remove civil liability for negligence, or criminal liability for negligence. It does not override an advance decision to refuse treatment under sections 24 to 26.
That is the legal route for helping someone wash, dress or eat when they cannot consent to that help. It is not a power to do whatever the rota says, and it is not a power to overrule a valid and applicable advance decision. Section 24 defines an advance decision as a decision, made by someone aged 18 or over who has capacity at the time, that a specified treatment is not to be carried out or continued in specified circumstances if they later lack capacity to consent to it. It can be written in ordinary language. It is a refusal of treatment. It is not a general instruction about the morning routine.
Section 4 is the best-interests test. The decision-maker must not decide merely on the basis of age, appearance, a condition, or behaviour that might lead to unjustified assumptions. They must consider all the relevant circumstances, meaning those they are aware of and which it would be reasonable to regard as relevant, and in particular:
- whether the person is likely to have capacity for this matter at some time, and if so when
- so far as reasonably practicable, permitting and encouraging the person to take part, or to improve their ability to take part
- so far as reasonably ascertainable, the person's past and present wishes and feelings, including any relevant written statement made when they had capacity, the beliefs and values that would be likely to influence their decision, and the other factors they would be likely to consider
- if it is practicable and appropriate, the views of anyone the person named to be consulted, anyone caring for them or interested in their welfare, any attorney, and any deputy, on what would be in the person's best interests and on those wishes, beliefs and values
Where the decision is about life-sustaining treatment, the decision-maker must not be motivated by a desire to bring about the person's death. The Act defines life-sustaining treatment as treatment which, in the view of a person providing health care for them, is necessary to sustain life. A home care agency is not that health care decision-maker. Where a ReSPECT form or a DNACPR decision exists, the carer needs to be able to see it. The clinical decision remains with the people providing the health care.
For an act done by someone other than the court, section 4 is met if, having taken those steps, the person reasonably believes that what they do is in the person's best interests.
Who can actually decide
A relative's views belong in the section 4 consultation. The Act does not turn those views into consent. The people who can decide within a granted authority are an attorney and a deputy, and only inside that authority.
GOV.UK describes two lasting powers of attorney, each legally binding only in England and Wales. A health and welfare lasting power of attorney covers matters such as the daily routine, medical care, moving into a care home and life-sustaining treatment, and it can be used only when the person is unable to make their own decisions. A property and financial affairs lasting power of attorney covers money and property, such as a bank account, bills, benefits or selling a home, and it can be used, with the person's permission, once it is registered. The Code says a personal welfare lasting power of attorney can be used only when the donor lacks capacity for the specific welfare decision, and that an unregistered lasting power of attorney gives the attorney no legal power to decide.
Section 6 says a section 5 act does not authorise something that conflicts with a decision made, within scope, by an attorney or a deputy. There is a narrow exception. While a decision is sought from the court, someone may still provide life-sustaining treatment, or do an act they reasonably believe is necessary to prevent a serious deterioration in the person's condition.
So the file on the office wall needs to say which document exists, whether it is registered, and which decisions it covers. A daughter who holds only a property and financial affairs lasting power of attorney can be consulted about a wash. She cannot consent to it under that document. GOV.UK's page for health and welfare attorneys says the attorney must tell the care staff when they start making decisions, and may need to show the lasting power of attorney.
Where the Act requires an independent mental capacity advocate, the duty to instruct one is not the agency's duty for a routine visit. Section 37 puts that duty on an NHS body which is proposing serious medical treatment for a person who lacks capacity to consent, where there is nobody appropriate to consult other than someone providing care or treatment in a professional capacity or for remuneration. Urgent treatment can proceed if the advocate has not yet been instructed.
Restraint
If the act is intended to restrain the person, section 5 applies only where two further conditions in section 6 are met. The carer must reasonably believe the restraint is necessary to prevent harm to the person. The restraint must be a proportionate response to the likelihood of that harm and the seriousness of that harm.
The Act says a person restrains another if they use, or threaten to use, force to secure the doing of an act which the person resists, or if they restrict the person's liberty of movement, whether or not the person resists. Holding an arm so that a wash can be finished, or stopping someone leaving a room, is in that definition. Doing it because the visit is running late is not the test the section sets.
Section 6 is also not an authorisation to deprive someone of their liberty. The safeguarding guide sets out how improper restraint sits with the agency's safeguarding duties.
Liberty in the person's own home
Section 4A says the Act does not authorise anyone to deprive another person of their liberty. The exceptions in force are a relevant decision of the court, meaning an order under section 16(2)(a) about the person's personal welfare, and an authorisation under Schedule A1 for a hospital or care home resident. Legislation.gov.uk marks the substitution that would replace that Schedule A1 paragraph with the Liberty Protection Safeguards as prospective, apart from a power to make regulations.
A person's own home is not a Schedule A1 setting. The Deprivation of Liberty Safeguards are the hospital and care home route. If a court does authorise arrangements, or that authorisation is withdrawn, an English agency's duty to tell CQC is covered in the notifications guide.
On 2 June 2026 the Supreme Court changed what counts as a deprivation of liberty. The Department of Health and Social Care's page, updated on 22 September 2026, says the changes apply immediately and extend across the UK. It says the Cheshire West "acid test", continuous supervision and control and not being free to leave, is no longer the test. The assessment is multifactorial. The page lists the type, duration, effects and manner of implementation of the restrictions, whether the person objects, how far the situation is from detention in a prison cell, the relative normality of the arrangements, and the purpose of the arrangement. It says no single factor is determinative, and that greater restrictions would be required at home before a deprivation of liberty arose. It also says a person may be able to give valid consent to confinement even if they lack capacity under the Act to consent to the care and residence, where they are conscious of their environment, have a basic level of understanding, and can express that they accept or are content. If there is serious doubt, the page says no conclusion of valid consent can be drawn.
The same page says the court process still applies in settings other than hospitals and care homes where Article 5 is engaged, and that where there is doubt the referral should still be made. It says further interim guidance, including case studies, is still to be published. This guide does not decide whether a particular door, sensor or visit pattern meets that test. If it might, refer it to the local authority and take advice before you treat it as an ordinary risk assessment.
CQC's overview of the Mental Capacity Act and the Deprivation of Liberty Safeguards, last updated on 12 May 2022, still describes confinement in the words of the old acid test. Use the September 2026 department page for what now counts as a deprivation of liberty. CQC's current quality statement on consent is the inspection wording for the consent duty itself: people understand their rights around consent, staff obtain consent before care or treatment, and where necessary someone with legal authority decides within the Act, including the duty to consult.
What to write down
The Code draws a line that matters for a domiciliary service. Paragraph 4.60 says assessments of capacity for day-to-day decisions, or for consent to care, require no formal assessment procedure and no set form. It is good practice for paid care workers to keep a record of the steps they take. Paragraph 4.61 says an assessment of capacity to consent to the provision of services is part of care planning and should be recorded in the relevant documentation.
CQC's consent policy note for registration asks every service to show how and when consent is sought, what happens if it is refused or withdrawn, how informed consent is supported, when advocacy is used, and how attorneys and deputies are involved. It also asks for the five principles, and for who assesses capacity, when, and why. It asks for information about the Deprivation of Liberty Safeguards or about community deprivation of liberty, depending on the service type.
A record that will still make sense in six months says:
- the decision, stated as a question rather than as a diagnosis
- the support that was tried, including how the information was given
- which of the four abilities in section 3 the person could and could not manage, in ordinary language
- who was consulted, and what they said about the person's wishes
- the option chosen, and why a less restrictive option would not achieve the purpose
- when it will be looked at again, including if the person's condition fluctuates
That record belongs on the care plan the carer opens at the door, not in a side conversation. On HomecareOS the plan is what the carer sees on the phone, and a ReSPECT form, a DNACPR decision or another document can be filed on it so the carer can read the one you choose during the visit. The software holds the record. It does not assess capacity, and it does not authorise a deprivation of liberty.
Scotland, Wales and Northern Ireland
The 2005 Act is an England and Wales statute. Home care compliance in the four UK nations sets out how the regulators differ. Regulation 11 is the English consent regulation. It is not the Welsh, Scottish or Northern Irish rule.
In Wales the Act and the Code still apply. The inspector is Care Inspectorate Wales. The CIW registration guide is the starting point for the Welsh application. A lasting power of attorney registered with the Office of the Public Guardian in England and Wales is the document GOV.UK describes as legally binding in those two countries.
In Scotland the statute is the Adults with Incapacity (Scotland) Act 2000. Section 1 says there is to be no intervention unless the person responsible is satisfied that it will benefit the adult and that the benefit cannot reasonably be achieved without it, and that the intervention is the least restrictive option consistent with its purpose. Account must be taken, so far as reasonable and practicable, of the adult's present and past wishes and feelings, and of the views of the nearest relative, named person and primary carer, of any guardian or attorney with relevant powers, of anyone the sheriff has directed to be consulted, and of anyone else with an interest in the adult's welfare whose views have been made known. A guardian, attorney or manager of an establishment must encourage the adult to use and develop their skills. An adult, for that Act, is a person aged 16 or over. The Scottish definition of "incapable" is in section 1(6). It is not the English four-part test, and the Scottish Government's principles page is the short official statement of those principles. GOV.UK says an English or Welsh lasting power of attorney is not the document that works in Scotland.
In Northern Ireland the Department of Health's Mental Capacity Act page describes the Mental Capacity Act (Northern Ireland) 2016 as partially commenced. Research provisions came into operation on 1 October 2019. Provisions on deprivation of liberty, and on money and valuables in hospitals and residential care and nursing homes, came into operation on 2 December 2019. That is a different scheme from the English Act, and this guide does not restate it. The department's September 2026 page says the Supreme Court's change to the definition of deprivation of liberty extends across the UK, so the definition point above is not England-only. The authorisation route in Northern Ireland is the Northern Ireland statute. The RQIA registration guide covers registration of a domiciliary care agency there.
Sources
- Mental Capacity Act 2005, section 1, the principles.
- Section 2, people who lack capacity, and section 3, inability to make decisions.
- Section 4, best interests, section 4A, the restriction on deprivation of liberty, section 5 and section 6, acts in connection with care or treatment and the limits on restraint.
- Section 24, advance decisions to refuse treatment, section 37, serious medical treatment and the independent mental capacity advocate, and section 42, the duty to have regard to the Code.
- Mental Capacity Act Code of Practice, including who must have regard to it and paragraphs 4.36, 4.38, 4.60 and 4.61 on assessment and recording.
- Regulation 11: Need for consent, Care Quality Commission, page last updated 16 May 2025.
- Consent to care and treatment, the CQC quality statement, and Consent policy and procedures, the registration document.
- UK Supreme Court 2026 judgment on what constitutes a deprivation of liberty, Department of Health and Social Care, updated 22 September 2026.
- Make, register or end a lasting power of attorney and Health and welfare attorneys, GOV.UK.
- Adults with Incapacity (Scotland) Act 2000, section 1, and the Scottish Government principles page.
- Mental Capacity Act, Department of Health, Northern Ireland, on partial commencement.