1. What is Mental Capacity?

Having mental capacity means that a person is able to make their own decisions. The Mental Capacity Act 2005 (MCA) says that a person is unable to make a particular decision if they cannot do one or more of the following four things:

• understand information given to them;
• retain that information long enough to be able to make the decision;
• weigh up the information available to make the decision;
• communicate their decision – this could be by talking, using sign language, using pictures and symbols or Makaton, even simple muscle movements such as blinking an eye or squeezing a hand.

We all have problems making decisions from time to time, but the MCA is about more than that. It is specifically designed to cover situations where someone is unable to make a decision because their mind or brain is affected, for instance, by illness or disability, or the effects of drugs or alcohol. A lack of mental capacity could be due to:

• a stroke or brain injury;
• a mental health problem;
• dementia;
• a learning disability;
• confusion, drowsiness or unconsciousness because of an illness or the treatment for it;
• substance misuse.

The type of decisions that are covered by the MCA range from day-to-day decisions such as what to wear or eat, through to serious decisions about where to live, having an operation or what to do with a person’s finances and property.

The MCA applies to situations where a person may be unable to make a particular decision at a particular time because their mind or brain is affected, for instance, by illness or disability, or the effects of drugs or alcohol. For example someone may be unable to make a decision when they are depressed but may be able to make the decision when they are feeling better. It may be the case that the person lacks capacity to make a particular decision at a particular time but this does not mean that a person lacks all capacity to make any decisions at all. For example, a person with a learning disability may lack the capacity to make some major decisions – for instance where they should live – but this does not necessarily mean that they cannot decide what to eat, wear and do each day. It is important to remember at all times that lack of capacity may not be a permanent condition. Assessments of capacity should be time and decision specific (see Assessing Mental Capacity).