Mental Capacity Act

Examples of people who may lack capacity include those with:

• dementia
• a severe learning disability
• a brain injury
• a mental health condition
• a stroke
• unconsciousness caused by an anaesthetic or sudden accident

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 the 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:

Everyone has the right to make his or her own decisions. Health and care professionals should always assume an individual has the capacity to make a decision themselves unless it is proved otherwise through a capacity assessment.

Individuals must be given help to make a decision themselves. This might include, for example, providing the person with information in a format that is easier for them to understand.

Just because someone makes what those caring for them consider to be an “unwise” decision, they should not be treated as lacking the capacity to make that decision. Everyone has the right to make their own life choices, where they have the capacity to do so.

Where someone is judged not to have the capacity to make a specific decision (following a capacity assessment), that decision can be taken for them, but it must be in their best interests.

Treatment and care provided to someone who lacks capacity should be the least restrictive of their basic rights and freedoms possible, while still providing the required treatment and care.

The MCA also allows people to express their preferences for care and treatment in case they lack the 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 the capacity to make some decisions but have the capacity to make others, so it is vital to consider whether the individual lacks the 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.

For more information please go to the NHS website.

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 the 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.