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Assessing Mental Capacity

1. Introduction

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.

2. Who is Responsible for Assessing Capacity?

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.

2.1 Levels of Assessment

Click here to view/download the Mental Capacity Assessment Levels Framework.

3. When should Capacity be Assessed?

The MCA makes clear that any assessment of a person’s capacity must be ‘decision-specific’. This means that:

  • the assessment of capacity must be about a particular decision that has to be made at a particular time. It is not about a range of decisions;
  • if someone cannot make complex decisions this does not mean that they cannot make simple ones. For example, it is possible that someone with learning disabilities can make decisions about what to wear or eat but not about whether or not they need to live in a care home;
  • decisions about capacity must not be based on a person’s age, appearance, condition or behaviour alone.

3.1 Exclusions

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.

There are a number of decisions that are excluded from the best interests process are listed below. More information about these can be found in the MCA Code of Practice (p 16-17).

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.

Excluded Decisions

Family Relationships:

  • 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:

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:

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

Voting Rights:

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.

4. The Test to Assess Capacity

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.

4.1 The functional test of capacity

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).

4.2 Are they able to make a decision?

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:

  • understand the information relevant to that decision;
  • retain that information;
  • use or weigh that information as part of the process of making the decision;
  • communicate their decision (whether by talking, using sign language, pictures, symbols, Makaton or any other means).

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.

5. Assessment Tools

6. Challenging the Result of an Assessment of Capacity

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:

  • the first step will always be to raise the matter with the person who did the assessment. The assessor’s records will be an important part of this process;
  • a second opinion may be useful in some cases;
  • local complaints procedures;
  • mediation;
  • case conference;
  • if a resolution is not possible they can apply to the Court of Protection (see Court of Protection) to seek a ruling.

Chapter 15 of the MCA Code of Practice provides more detailed guidance on methods for resolving disagreements.

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