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Toast or cereal? Car or bus? EastEnders or Corrie? Just think how many decisions you make each day. Few are life-defining, but just being able to make a simple choice helps us to live the way we want.

Yet too many people, particularly those with learning difficulties, mental health problems and dementia, are denied the chance to make decisions on even the minutiae of their day-to-day living, let alone more complex issues.

With the implementation of the Mental Capacity Act 2005, however, such a dismissive attitude towards vulnerable people may be set to change. Historically it has often been assumed that people with certain conditions are unable to make any decisions - consequently little time or patience has been dedicated to find out if this is really the case. However, the new mental capacity legislation starts from the opposite premise: that every adult should be presumed able to make their own decisions unless it can be proven otherwise.


To judge objectively whether an individual has the capacity to make a decision, the act sets out a clear test. A person can only be deemed unable to make a decision if they are unable to understand and retain the relevant information, unable to use that information as part of the decision-making process and unable to communicate what they have decided.

Crucially, the legislation is clear that even if a person cannot understand the information when it is presented in a conventional way, as long as it can be understood in a different format - such as through visual aids - they must not be judged as lacking the capacity to make a decision. Likewise, even if a person is only able to retain the information for a short period, this should not prevent them making decisions.

Of course there will always be situations where individuals are unable to make their own choices. In these cases, every effort must be made to ensure that any decision is in their best interests. The act sets out a clear checklist of factors to be worked through, which includes the person's past and present wishes and feelings.

For all its aspirations, the success of the act will depend on how it is implemented. The roles of health and social care practitioners will be instrumental. So what will this piece of legislation mean for them?

Until the government has produced the codes of practice setting out how the act should work - the draft codes are being rewritten - the finer details will not be apparent. It is obvious, though, that the legislation could have a significant impact on a wider level for health and social care practitioners.

"They will need to take a more value-based approach to their work, starting with the presumption that people can make decisions. This could mean a cultural shift," says Richard Kramer, co-chair of the Making Decisions Alliance, a coalition of organisations that has been campaigning for mental capacity legislation.

"Some health and social care staff are already fulfilling the principles and spirit of the legislation. But for others the act will affect the day-to-day support they give to people. Some health professionals particularly may need to shift their attitudes."

The act states that a person cannot be presumed to lack capacity purely on the basis of their age or appearance, or because of behaviour that could cause "unjustified assumptions".

"This gives a clear message to decision-makers that they can't make judgements based on subjective views about quality of life," says Kramer.

To help ensure that vulnerable people can make their voices heard, the legislation introduces independent mental capacity advocates. The relationship between health and social care professionals and advocates is often a fractious one but, in light of the act, both sides are going to have to grow more accustomed to one another.

Rick Henderson, director of Action for Advocacy, an organisation that represents advocacy schemes, says: "Health and social care professionals will have to work more often with advocates who will have more of a visible presence. But decent workers will be used to having advocates around and working in a person-centred way."


He recalls a case when he was an advocate for an older man who needed to be discharged from hospital. The man's social worker wanted to put him in a care home but his relatives - estranged for several years - wanted him to live with them.

Henderson says: "The social worker wanted me to advise him on the best course of action. My role wasn't to advise social services but to imagine myself in the shoes of the elderly gentleman and get some sense of what he would have said if he could speak."
But he was called in too late, and the man died before he was discharged.

"I was given just 48 hours to figure out what this guy wanted," Henderson says. "I hope the Mental Capacity Act will make it clear that I could have been brought in much earlier."

Even though there are about 1,000 advocacy schemes in England and Wales, provision is patchy. Not all health and social care professionals are comfortable with - or fully understand - the role of advocates, so an education programme will be vital. And many will have taken issue with the government's insinuation that they are not already working in a way that reflects the ethos of the act.

Moreover, not everyone agrees that legislation alone will achieve either best practice or the necessary cultural changes. Learning difficulties organisation People First says the act is open to individual interpretation.

For director Andrew Lee, it spells a need for professionals to go back to basics. "Whether it's a doctor, teacher or social worker, their training needs to be done by people with learning difficulties using real-life examples. Then the professional will have meaningful training to fall back on."

The problem is not so much a question of people's voices being ignored, he adds. "It's the fact that the decisions they do make are not being respected. Whether a person without learning difficulties agrees or disagrees they should have to respect the view of the person with learning difficulties. Other people learn from their mistakes so why should people with learning difficulties be any different?"

It is hoped that the Mental Capacity Act will help to ensure that this "professional knows best" attitude is no longer the favoured option. Decisions will be open to more intense scrutiny and professionals will need to be aware that disputes could end up in the new Court of Protection, which will deal with the legislation.

The act comes into force in 2007 but changes need to start soon. Changing mindsets takes time but it's not a matter over which professionals have any choice. The only decision they have to make is when to begin their new way of thinking.