Mental capacity assessment

The Mental Capacity Act 2005 received Royal Assent on 7 April 2005 and reformed the law to improve and clarify the decision making process for people unable to make their own decisions. The Act governs decision making on behalf of adults, both where they lose mental capacity at some point in their lives, for example as a result of dementia or brain injury and where the incapacitating condition has been present since birth. It covers a wide range of decisions, on personal welfare as well as financial matters. The Mental Capacity Act (MCA) 2005 applies to everyone involved in the care, treatment and support of people aged 16 and over living in England and Wales who are unable to make all or some decisions for themselves. All professional have a duty to comply with the Code of Practice.

The Act will help people make their own decisions and also protects people who cannot make their own decisions about some things, this is called “lacking capacity”.

Five key principles

The Act is underpinned by five key principles which underpin all acts carried out and decisions taken:

1. A person must be assumed to have capacity unless it is established that they lack capacity.

2. A person is not to be treated as unable to make a decision unless all practicable (doable) steps to help them to 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. An act done, or decision made under this Act for a person who lacks capacity must be done or made, in their best interests.

5. Before the act is done, or the decision is made, it must be considered if it can be effectively achieved in a way that is less restrictive of the person’s rights and freedom of action. 

Assessments of capacity should be time and decision specific. You might need to make an assessment of capacity where a person is unable to make a particular decision at a particular time because their mind or brain is affected by illness or disability.

Anyone caring for or supporting a person who may lack capacity is required to make an assessment of capacity before a decision affecting them is made – the more serious the decision the more formal the assessment of capacity needs to be.

In order to decide whether an individual has the capacity to make a particular decision you must answer two questions:

Stage 1:

Is there an impairment of or disturbance in the functioning of the person’s mind or brain?

Stage 2:

Is the impairment or disturbance sufficient that the person lacks the capacity to make a particular decision?

The MCA says that a person is unable to make their own decision if they cannot do one or more of the following four things:

  • to 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 or even simple muscle movements such as blinking an eye or squeezing a hand

Every effort should be made to find ways to communicate with someone before deciding that they lack capacity to make a decision based solely on their ability to communicate.

The assessment must be made on the balance of probabilities – is it more likely than not that the person lacks capacity? You should be able to show in your records why you have come to your conclusion that capacity is lacking for the particular decision.

If a person has been assessed as lacking capacity then any action taken, or any decision made for or on behalf of that person, must be made in his or her best interests (principle 4)

The Act provides a non-exhaustive checklist of factors that decision makers must work through in deciding what is in a person’s best interests. A person can put his/her wishes and feelings into a written statement if they so wish, which the person determining capacity must consider. In addition, people involved in caring for the person lacking capacity have to be consulted concerning a person’s best interests. For more detailed information you should refer to the Code of Practice. Appropriate records should be kept demonstrating ‘reasonable belief’. Formal processes are not required but an assessor must be able to describe the steps he has taken to assess capacity, have objective reasons and justify his conclusions for deciding the person lacks capacity to make the required decision. If the assessment is that the person lacks capacity the decision should be taken on their behalf and in their best interests.

In determining what is in the person’s best interests:

  • identify all relevant circumstances, including all the things that the person would take in to account if he was making the decision for himself
  • consider the person’s past and present wishes and feelings, beliefs and values
  • consider the views of people who are close to the person who lacks capacity, for example, family members, friends, carers or anyone named by the person as someone who should be consulted about decisions of the type in question
  • avoid discrimination and do not make assumptions about the person’s best interests simply on the basis of the person’s age, appearance, condition or behaviour

See: Assessing mental capacity [PDF | 178KB]