What is a Mental Capacity Assessment?

What is Capacity?

According to the Mental Capacity Act, a person is considered to lack capacity if they are unable to make or communicate a decision that needs to be made at the time it needs to be made ‘because of an impairment of, or a disturbance in the functioning of, the mind or brain’.  The assessment of capacity is very specific in that it focuses on the specific decision that needs to be made; it does not matter if the individual is able to make other decisions or whether the incapacity is temporary or permanent. What is important is that the individual is unable to make the specific decision in question due to their impairment or disturbance.

What is the Mental Capacity Act?

The Mental Capacity Act 2005 was introduced to England and Wales in 2007. Scotland has its own separate legislation (Adults with Incapacity (Scotland) Act 2000) and Northern Ireland, the Isle of Mann and the Channel Islands currently have no equivalent legislation, although it is governed by common law.

The Mental Capacity Act applies to all decisions made on behalf of individuals aged over 16 who permanently or temporarily lack the capacity to make a specific decision at the time it needs to be made.  According to English law, every person is considered to be able to make their own decisions unless it is proven that they lack the capacity to do so due to an impairment or disturbance such as an acquired brain injury, Learning Disability or Dementia.   The Act also sets out the law in respect of Advance Decisions, which deals with the legalities around individuals who wish to prepare for a time in the future when they might lack capacity.

The key principles of the Act are as follows:

Principle 1: A person must be assumed to have capacity unless it is established that he lacks capacity.

Principle 2:  A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.

Principle 3:  A person is not to be treated as unable to make a decision merely because he makes an unwise decision.

Principle 4: An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.

Principle 5: Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.

These principles have been designed to empower and protect individuals who lack capacity to make their own decisions. They are used as a tool to underpin all acts or decisions made on behalf of an incapacitated individual to ensure that any decision made is done so with their best interests in mind.  The Act is very clear in terms of its position about making a judgement of what is in someone’s best interests and sets out a checklist of factors which must be considered by decision-makers when making a judgement. This includes not making a determination based on; (a)the person’s age or appearance, or; (b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests. 

The Mental Capacity Act is supported by a Code of Practice which was designed to offer practical application of the Act for professionals working with an individual who lacks capacity. Indeed, any professional working with a person who lacks capacity, including paid carers or attorneys appointed by The Court of Protection, are under a formal duty to have regard for the code.

How is Capacity Assessed?

The Act sets out a very clear, decision-specific test which should be used to assess an individual’s capacity.  Anyone who is making a decision on behalf of someone else must never make an unjustified assumption about a person’s capacity due to a person’s age, illness or condition, but must demonstrate a reasonable belief that the individual is unable to make a specific decision at that particular time due to an impairment or disturbance of the mind.  A person who lacks capacity will be unable:

(a)to understand the information relevant to the decision,

(b)to retain that information,

(c)to use or weigh that information as part of the process of making the decision, or

(d)to communicate his decision (whether by talking, using sign language or any other means).

Anyone is able to assess capacity but it should always be carried out by the professional or person closest to the decision at hand.  The more serious the decision, the more formal the assessment and it might be that a Psychologist or a Psychiatrist are brought in for a second opinion.  For example, if a solicitor is preparing a will for someone who they suspect lacks capacity to make financial decisions, they might instruct an expert Psychiatrist or Psychologist to undertake an assessment of capacity.

What is the difference between the Mental Health Act 1983 and the Mental Capacity Act 2005?

The Mental Health Act 1983 sets out the law in respect of treating mentally ill patients. Under this law, an individual can be admitted, detained and treated in hospital without their consent if it is believed that they pose a risk to themselves or to the public.  This can be done even if the individual has capacity, as they would be treated under The Mental Health Act and not The Mental Capacity Act.

The differences between the two are very important to understand. If an individual is being treated under the Mental Capacity Act it has been deemed that they are unable to make a specific decision about their treatment at that particular time or that they do not have the capacity to refuse treatment.  If the individual has capacity but has a mental illness which requires treatment which they are refusing, then they are treated under the Mental Health Act 1983.