Excluded Decisions

What are excluded decisions?

While the Mental Capacity Act covers a wide range of decisions made, or actions taken, on behalf of people who may lack capacity to the decision for themselves, the Act also sets out certain best interests decisions which can never be made either because they are so personal to the individual concerned, or because they are governed by other legislation. The decisions that are excluded from the best interests process are listed below. More information about these can be found on pages 16-17 of the Code of Practice.

Two things need to be borne in mind when reading the list.

• The need to assess capacity

Firstly, although the decisions listed are excluded from best interests process, an assessment of capacity must still be carried out where there is doubt about the person’s capacity to make such a decision.

• Protecting and safeguarding vulnerable people

Secondly, while the Act does not allow anyone to make such decisions on behalf of someone who is shown to lack capacity, the Code of Practice reminds decision-makers that this does not prevent action being taken to protect a vulnerable person from abuse or exploitation.

Excluded decisions

Decisions concerning family relationships (Section 27 of the MCA)

Decisions that must not be made on someone else’s behalf are:

  • consenting to marriage or a civil partnership
  • consenting to have sexual relations
  • consenting to a decree of divorce on the basis of two years’ separation
  • consenting to the dissolution of a civil partnership
  • consenting to a child being placed for adoption or the making of an adoption order
  • discharging parental responsibility for a child in matters not relating to the child’s property, or
  • giving consent under the Human Fertilisation and Embryology Act 1990.

Mental Health Act matters (Section 28) 

Where a person who lacks capacity to consent is currently detained and being treated under Part 4 of the Mental Health Act 1983, nothing in the Act authorises anyone to:

  • give the person treatment for mental disorder, or
  • consent to the person being given treatment for mental disorder.

Further guidance is given in chapter 13 of the Code of Practice. 

Voting rights (Section 29)

Nothing in the Act permits a decision on voting, at an election for any public office or at a referendum, to be made on behalf of a person who lacks capacity to vote.

Unlawful killing or assisting suicide (Section 62)

For the avoidance of doubt, nothing in the Act is to be taken to affect the law relating to murder, manslaughter or assisting suicide.