Assessments of capacity should start from the assumption that the person has capacity to make the decision in question (Principle 1 – see The Five Principles of the Mental Capacity Act). Under the MCA, there is the requirement to make an assessment of capacity before carrying out any care or treatment. Of course, the more serious the decision, the more formal the assessment of capacity will need to be. Whether, and how, such assessments are recorded may vary according to the seriousness of the decision made. It is important to bear in mind that just because someone lacks capacity to make a decision on one occasion it does not mean that they will never have capacity to make a decision in the future, or about a different matter.
See Ridwaan’s case study.
Whilst assessments of capacity have often traditionally been viewed as the responsibility of doctors or psychologists, under the Mental Capacity Act the person who is responsible for assessing capacity will be the person who would be taking the decision or carrying out the action on behalf of the incapacitated person.
The MCA makes clear that any assessment of a person’s capacity must be ‘decision-specific’. This means that:
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.
Capacity Assessments – the following decisions listed are excluded from best interests process. However, an assessment of capacity must still be carried out where there is doubt about the person’s capacity to make such a decision.
Safeguarding – action must be taken to protect a vulnerable person from abuse or exploitation.
Mental Health Act:
Where a person who lacks capacity to consent is detained and being treated under Part 4 of the Mental Health Act 1983, the Act does not authorise:
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:
For the avoidance of doubt, nothing in the Act is to be taken to affect the law relating to murder, manslaughter or assisting suicide.
Normally, an assessment of capacity would not be made without involving family, friends and/or carers, or other professionals involved. Deciding who to involve is a matter for the decision maker and will depend on the situation and the decision that needs to be made. Opinions must not be voiced without first conducting a proper assessment of the person’s capacity to make a decision.
To be able to make a decision about whether an individual has the mental capacity to make a particular decision, it must first be established whether there is an impairment of, or disturbance in, the functioning of the person’s mind or brain (it does not matter if this is permanent or temporary).
If there is, the second question to ask is whether the impairment or disturbance makes the person unable to make the particular decision. The person will be unable to make the particular decision if, after all appropriate help and support to make the decision has been provided, (Principle 2 – see The Five Principles of the Mental Capacity Act) he or she cannot:
Every effort should be made to find ways of communicating with someone before deciding that they lack the capacity to make a decision based solely on their inability to communicate. Very few people will lack capacity on this ground alone. Those who do might include people who are unconscious or in a coma or who suffer from a very rare neurological condition known as ‘locked-in syndrome’. In many other cases such simple actions as blinking or squeezing a hand may be enough to communicate a decision. The input of professionals with specialised skills in verbal and non-verbal communication is likely to be needed when making decisions in this area.
Assessments must be made on the balance of probabilities – is it more likely than not that the person lacks capacity? Case records must demonstrate how the conclusion that someone lacks capacity to make a decision has been arrived at.
Assessments can be challenged by people who have been assessed, or by someone acting for them – for instance, a relative or an advocate. When an assessment is challenged, the person could seek resolution in the following ways:
Chapter 15 of the MCA Code of Practice provides more detailed guidance on methods for resolving disagreements.
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