Examples of people who may lack capacity include those with:
However, just because a person has one of these conditions does not necessarily mean they lack the capacity to make a specific decision.
Someone can lack capacity to make some decisions (for example, to decide on complex financial issues) but still have the capacity to make other decisions (for example, to decide what items to buy at the local shop).
The MCA says:
The MCA also allows people to express their preferences for care and treatment in case they lack capacity to make these decisions. It also allows them to appoint a trusted person to make a decision on their behalf should they lack capacity in the future.
People should also be provided with an independent advocate who will support them to make decisions in certain situations, such as serious treatment or where the individual might have significant restrictions placed on their freedom and rights in their best interests.
How ‘mental capacity’ is determined
The MCA sets out a two-stage test of capacity.
1) Does the individual concerned have an impairment of, or a disturbance in the functioning of, their mind or brain, whether as a result of a condition, illness, or external factors such as alcohol or drug use?
2) Does the impairment or disturbance mean the individual is unable to make a specific decision when they need to? Individuals can lack capacity to make some decisions but have capacity to make others, so it is vital to consider whether the individual lacks capacity to make the specific decision.
Also, capacity can fluctuate with time – an individual may lack capacity at one point in time, but may be able to make the same decision at a later point in time. Where appropriate, individuals should be allowed the time to make a decision themselves.
In relation to the second question, the MCA says a person is unable to make a decision if they cannot:
understand the information relevant to the decision
retain that information
use or weigh up that information as part of the process of making the decision
If they aren’t able to do any of the above three things or communicate their decision (by talking, using sign language, or through any other means), the MCA says they will be treated as unable to make the specific decision in question.
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NCMUK has built a team of Social Workers who now undertake MCA assessments for clients around the UK in order to determine if they have capacity. This can be used by Solicitors when determining if clients have capacity to instruct them or can be used by the financial sector when undertaking pension/equity releases.
Finally NCMUK is undertaking MCAs around the UK for Solicitors and within the Court of Protection Arena.
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