What is mental capacity?

Mental capacity is the ability to understand information and make decisions. Someone who lacks mental capacity is considered to be unable to make a particular decision for themselves at that time. Mental capacity is not a general status but relates to a specific decision and time.

Things that might impact on someone’s mental capacity include: known/ suspected mental health problems, learning disability, brain injury, dementia, or substance misuse.

The Mental Capacity Act (2007) is an Act of Parliament that sets out the legal process that should be followed if someone thinks they need to make a decision on behalf of another person.

Alongside the accompanying guidance, it provides a clear framework for approaching these situations in an organised, defensible and person-centred way and was introduced to protect everyone involved by ensuring that the right process is followed.

The MCA sets out processes for assessing the ability of someone to make a decision and for making a decision on their behalf if necessary.  This is important for homelessness services who regularly support people who may struggle to make decisions due to health conditions or substance misuse.

The MCA can be used by anyone and does not need the input of mental health or other medical professionals. It sets out a clear process for assessing whether someone is able to make a specific decision at that particular time.

After following that process, if the person is assessed as not being able to make the decision, someone can make that decision on their behalf, following clear guidelines.

The 5 Principles of the MCA

  1. Start by assuming that the person has capacity until it is established that they lack capacity.
  2. A person is not to be treated as unable to make a decision unless all reasonable steps to help them do so have been taken without success.
  3. A person is not to be treated as unable to make a decision merely because they make an unwise decision.
  4. All decisions and actions taken under the MCA must be undertaken in the persons’ best interests, using the Best Interests Checklist.
  5. Always take the option that is less restrictive of the person’s rights and freedom of action.

The MCA process

If you think someone is unable to make a decision or is making a decision that you think is unsafe, then  the MCA could be useful. Anyone can carry out an assessment – this does not need to be a medical professional.

The  MCA sets out a clear assessment process that should be followed. You can access an assessment tool and guide in the Mental Health Service Interventions for Rough Sleepers toolkit.

  • Decision framing

    Be clear what the decision is about and the time at which it needs to be made. Does the decision need to be made at that point in time?

  • Supported decision-making

    Have you taken all possible steps to help them to make the decision themselves such as presenting the information in ways they can understand and digest?

  • Capacity concerns

    Is there any reason to believe that the person is struggling to make this decision because of their mental capacity?

  • Capacity assessment

    If yes, carry out an assessment of their capacity to make this decision using the process set out below and in the act.

  • Best interests

    If they lack capacity to make the decision, carry out an assessment to make a decision in their best interests, using the Best Interests decision checklist.

Capacity and decision-making

The MCA relates to a person’s ability to make a particular decision at a particular time. 

As a starting point, be clear about what the decision is that the person needs to make. Capacity relates to this specific decision and time and should never be considered as an overall concept.

Blanket statements such as “this person lacks capacity” are legally incorrect unless they relate to a specific decision at a specific time.

The capacity assessment

The MCA sets out a two-stage test of capacity.

This involves answering two key questions:

  1. Is the person unable to make the decision in question at the time it needs to be made?
  2. Is this inability as a result of an impairment of, or disturbance in the functioning of the mind or brain?

Assessing capacity

In order to assess capacity, the MCA lays out four keys areas to consider as a functional test.

Through conversation and discussion around the issue, you should establish whether the person is able to:

1. Understand the information relevant to the decision

This often relates to a person’s cognitive abilities. For example, someone with a brain injury may struggle to understand the information needed to decide whether to sign a tenancy agreement or choose between different daytime activities. If they cannot understand the relevant information, this may affect their capacity to make that particular decision.

2. Retain that information long enough to make the decision

A person does not need to remember the information the next day. However, someone with moderate dementia may be unable to retain options long enough to compare them, which could affect their ability to make the decision.

3. Use and weigh up the information as part of the decision-making process

For people experiencing mental illness, delusions or mood disorder, this may often be the element of the test that is most affected. If someone is under the influence and in emotional distress, for example, this could impact their ability to weigh the risks and benefits of a situation.

4. Communicate their decision

Pperson who is unconscious would be unable to communicate a decision. In some situations, a person may also be unable to communicate within the time available for the decision to be made. For example, someone with an autism spectrum condition may need additional time or support to communicate their decision. Each element of the test must be considered in relation to the person, the decision and the timing. If you believe that the answer to any of these questions is ‘no’, then you can find that they lack capacity to make that decision at that time.

If the person is unable to do one or more of the four things above, on the balance of probabilities then you have assessed that they lack capacity.

Is this inability as a result of an impairment of, or disturbance in the functioning of the mind or brain?

There must be reason to believe that the person has an impairment or disturbance of the mind or brain, and that this is affecting their ability to make the specific decision. Concern about the consequences of a decision is not enough on its own. If there is no reason to believe that an impairment or disturbance is affecting the person’s decision-making, the Mental Capacity Act is not engaged.

Equally, the presence of an impairment does not automatically mean that a person lacks capacity. Someone may be very unwell with a psychotic illness and may meet criteria for detention in hospital, but this does not mean they lack capacity to make every decision. Their symptoms may affect some decisions but not others, such as what they want to eat or who they wish to see.

It is unlawful to assume that a person lacks capacity in one area simply because they have been found to lack capacity in another.

Key tips for assessing capacity

  • Open questioning

    Do not rely on closed questions that only produce yes or no answers.

  • Recording assessment

    Record how you established whether the person could understand, use and weigh, retain, and communicate the relevant information.

  • Agreement ≠ capacity

    Do not assume capacity simply because someone agrees with what is suggested.

  • Question relevance

    Tailor questions to the actual decision being made.

  • Understanding checkpoints

    Be clear about the specific points the person needs to understand.

  • Timing/best state

    Consider timing carefully and assess people when they are at their best.

  • Delay if temporary

    If the inability to decide is temporary and the decision can safely wait, delay it where appropriate.

  • Assessor suitability

    If the person most closely involved in care and support is best placed to assess, they may be the right person to carry out the assessment.

  • Reasonable belief

    Do not avoid making a decision because you are unsure. The law states that the decision is made on the balance of probabilities – you only need to be more than 51% sure that you have reached the right conclusion, and have ‘reasonable belief’ that you have done so.

Importance of process

Following the MCA processes is essential because it respects the person’s wishes and feelings and provides legal protection where reasonable steps have been taken to establish capacity and reach a reasonable belief that the person cannot make the decision themselves.

If your assessment concludes that the person does not have capacity to make a decision for themselves then someone else should make the decision on their behalf following two key principles: best interests decision making and least restrictive option.

Best Interests decision-making

If a capacity assessment finds that a client does not have capacity to make a particular decision, a Best Interests assessment must follow. The term “Best Interests” has a specific legal meaning under the MCA and can only be used when the required processes are followed.

Any act done, or decision made, on behalf of a person who lacks capacity must be done in their best interests according the Best Interests Checklist which is laid out in the Act and listed below. Establishing that a person lacks capacity does not mean that professionals can simply do what they think is best. They must be able to justify the decision by reference to the best interest checklist.

If a Lasting Power of Attorney covers the decision, the attorney makes the decision using the Best Interests checklist. For serious decisions or disputes, is it worth considering bringing involved parties together for a Best Interests meeting.

Clear records should be kept of how the decision was reached. This should include your working out and record your reasoning and should use the MCA checklist headings.

Least restrictive option

Before any act is done or decision is made, consideration must be given to whether the same aim can be achieved in a way that is less restrictive of the person’s rights and freedoms. The least restrictive effective option should always be considered.

Best Interests checklist

  • Encourage participation and support the person to take part as much as possible.
  • Identify all relevant circumstances the person would consider.
  • Find out the person’s past and present wishes, feelings, beliefs and values.
  • Avoid discrimination and do not make assumptions based on age, appearance, condition or behaviour.
  • Assess whether the person might regain capacity and whether the decision can wait.
  • If life-sustaining treatment is involved, do not be motivated by a desire to bring about death and do not make assumptions about quality of life.
  • Consult relevant people, including those caring for the person, relatives, friends, attorneys or deputies where relevant.
  • Consider less restrictive options.
  • Weigh all information to decide what is in the person’s best interests.

Case study: Andy's Move: Assessing Capacity and Deciding in His Best Interests

Mental Capacity Act in Practice: Three Frontline Decisions