Assessing Mental Capacity and Making Decisions

The following indicators suggest the person may not be able to make their own decision and a mental capacity assessment should be carried out.

1. Lacking a general understanding of the decision that needs to be made, and why it needs to be made;
2. Lacking a general understanding of the likely consequences of making, or not making the decision;
3. Being unable to understand, remember and use the information provided to them when making the decision;
4. Refusing to believe some of the information provided that is relevant to the decision; and
5. Being unable to communicate the decision.

There may also be cause for concern if someone:

1. Repeatedly makes an unwise decision that puts them at serious risk of harm, abuse or exploitation; or
2. Makes a particular unwise decision that is obviously irrational or out of character.

Click here to access a flowchart summarising the circumstances when a mental capacity assessment should be carried out.

Note: Under the Act, mental capacity is both 'decision specific' and 'time specific'. This means that each decision must be considered in its own right. Whilst a fresh mental capacity assessment is not required for decisions where the capacity to make that decision has been recently assessed, historical mental capacity assessments cannot be used to make judgements about current capacity, or to generalise on a person’s ability to make decisions.

The mental capacity assessment is a legal test, and not a medical test, and is set down s.2(1) MCA 2005.

The purpose of the mental capacity assessment is to determine whether a person aged 16 or over is able to make a particular decision at the time that it needs to be made.

Under Section 3 of the Act, a person is unable to make a decision for themselves if they are unable to do one or more of the following:

1. Understanding relevant information given to them;
2. Retain that information long enough to be able to make the decision;
3. Weigh up the information to make the decision; and
4. Communicate their decision.

The person must be able to understand the information that is relevant to the decision to be made. What information is relevant will depend on the decision that is being made. For example, when making a decision about where to live and what care to receive, the following information is relevant:

1. What care is needed;
2. What are the options for where to live;
3. Who will provide the care in each of the options; and
4. What is the consequence of not having the care.

Whereas when making a decision about hoarded belongings, the following information is relevant:

1. The volume of belongings;
2. The impact of those belongings on the use of the property;
3. The risks created by the belongings, such as fire or building collapse; and
4. The options for the removal and disposal of the belongings.

The information relevant to a decision will always include information about the reasonably foreseeable consequence of deciding one way or another or of failing to make decision at all.

Under the Mental Capacity Act, it is important that information relevant to the decision is provided to the person in the most appropriate way, based on their specific circumstances and needs.

This could include, but is not limited in any way to:

1. Verbally through appropriate language;
2. Sign language;
3. Pictures and other visual aids.

A decision that a person cannot understand information when it has been given to them in an inaccessible way is likely to be unlawful.

There is no fixed requirement about how long a person must be able to retain information for, only that they must be able to retain it long enough for the decision to be made.

It is the responsibility of the practitioner assessing to determine how long a person needs to retain information for based on the specific circumstances and nature of the decision to be made.

In addition to understanding the relevant information and being able to retain it for long enough to make the decision, the person must be able to use and weigh that information in the decision making process. Where someone understands the information they have been given but does not believe it applies to them, that information is not being weighed up in the decision making process.

There may also be an inability to use the information because of circumstances such asimpulsivity due to brain damage or emotional dysregulation due to mental illness.

It cannot be assumed that a person cannot communicate their decision because they are unable to communicate orally. Under the Mental Capacity Act communication of the decision by the person does not only mean verbal communication of the decision.

This can include, but is not limited to:

1. Written communication;
2. Communication through sign language;
3. Communication through an interpreter;
4. Communication through gesture.

A decision about the person's ability to communicate based solely on their ability to communicate orally, is likely to be unlawful.

Mental capacity is complex, and it can sometimes be difficult to categorically say that a person is unable to make a decision. Often there may be:

1. Some evidence that suggests a person is unable to make the decision; and
2. Some evidence that suggests they can.

The balance of probabilities is the legal threshold by which a person's capacity must be decided when this is not clear. This is the threshold applied by the Court of Protection.

Making a decision on the balance of probabilities means deciding whether it is more likely or not that a person has (or lacks) capacity based on all of the available evidence.

Care needs to be taken to ensure that the same standard is applied in situations where the person wishes to make a decision that the assessor thinks is wise and to those where the assessor thinks the decision is unwise. There can be a tendency to find a lack of capacity in the latter group. Further, the person may be able to express their views very articulately anddemonstrate a good understanding of the relevant information even though they do not accept that it is true or that it applies to them. In those circumstances, consideration must be given to whether that information that is actually being weighed up in the decisionmaking process.

If a person is found to lack capacity to make a particular decision the Mental Capacity Act (when applied correctly) provides statutory powers for individuals (such as a carer) and organisations (such as a Local Authority or ICB) to make some decisions on their behalf without the need to go to Court (unless there is a dispute).

The person making a decision under the Mental Capacity Act is called the Decision Maker and the process that they must use to make decisions is set out as a statutory principle of the Act, most commonly referred to as the Best Interests principle.

Click here to access the guidance about applying the Best Interests principle to make a decision.

A range of decisions can be made by the Decision Maker if the person is not able to make those decisions themself, including:

1. Everyday decisions, such as what activities to attend or what to buy from the shop; and
2. Major decisions, such as where to live and whether to undergo medical treatment.

A Decision Maker must refer the matter to the Court of Protection if:

1. There is doubt about the person's mental capacity;
2. It is not clear what is in the person's Best Interests; or
3. The decision is particularly complex; or
4. The decision that is proposed is contested by the person or member of the person's family and a resolution cannot be reached.

1. Consenting to marriage or a civil partnership;
2. Consenting to have sexual relations;
3. Consenting to a decree of divorce on the basis of 2 years' separation;
4. Consenting to the dissolution of a civil partnership on the basis of 2 year's separation;
5. Consenting to a child being placed for adoption by an adoption agency;
6. Consenting to the making of an adoption order;
7. Discharging parental responsibility for a child in matters not relating to the child's property;
8. Giving consent under the Human Fertilisation and Embryology Act 1990; or
9. Giving consent under the Human Fertilisation and Embryology Act 2008.

When a person lacks capacity to consent and is receiving (or will be receiving) treatment regulated by section 4 of the Mental Health Act 1983, the Mental Capacity Act cannot be used to consent to, or authorise such treatment unless:

1. The treatment is that set out in section 58A of the Mental Health Act; and
2. The person is being treated informally; and
3. The person is under 18 years old; and
4. The person lacks capacity to consent.

This exception also applies when providing Care and Support to a person who is subject to a Community Treatment Order (CTO) under section 64B of the Mental Health Act who has not been recalled to hospital.

This is because the Mental Capacity Act provides that the Mental Health Act 1983 has supremacy in respect of the treatment of mental illness.

In respect of a referendum or at an election for any public office, no other person or organisation can use the Mental Capacity Act to make a decision:

1. To vote on behalf of another person; or
2. To decide who another person should vote for.

Nothing in the Mental Capacity Act affects criminal law relating to murder, manslaughter or the assistance of suicide.

Best Interests is a statutory principle set out in section 4 of the Act. It states that 'Any act done, or a decision made, under this Act or on behalf of a person who lacks capacity must be done, or made, in his best interests'.

Because the Best Interests principle is a statutory principle, there is a legal requirement for all Decision Makers to apply it when making decisions on behalf of a person who lacks capacity. There are a range of factors specified which must be taken into account.

It is important that the Best Interests principle is applied having regard to these factors, rather than making a decision on the basis of what might be thought of as the broader concept of best interests.

The Mental Capacity Act requires the Decision Maker to consider the following before proceeding to apply the Best Interest principle:

1. Is it likely that the person will, at some time, have capacity in relation to the decision; and
2. If so, when this is likely to be.

The Decision Maker must decide, based on this information whether to:

1. Proceed with the Best Interest decision; or

• Delay the Best Interest decision to see if the person regains capacity; so that

if the person regains capacity, they are able to make their own decision.

Under the Mental Capacity Act, the Decision Maker must, whenever it is reasonably practicable to do so:

1. Permit the person to participate;
2. Take steps to improve the person's ability to participate; and
3. Encourage the person to participate.

Regardless of the person's direct involvement in the decision, the Decision Maker must, as far as it is reasonably ascertainable, understand and consider:

1. The person's past and present wishes and feelings;
2. What beliefs and values would have influenced the person if they had capacity; and
3. Any other factors that would likely have influenced the person if they had capacity.

When considering the person's past and present wishes and feelings, the Decision Maker must give specific regard to any written statement of the person made when they had capacity.

The Decision Maker is legally required under the Act to consult with, and take into account the views of the following people whenever it is practicable and appropriate to do so:

1. Anyone named by the person lacking capacity as someone to be consulted with (on the precise matter in question or matters of that kind);
2. Anyone engaged in caring for the person or interested in their welfare;
3. Any Deputy appointed by the Court of Protection; and
4. If the person is over 18, any person/s with a Lasting Power of Attorney.

When involving others, the Decision Maker must specifically take into account their views about:

1. What they feel would be in the person's Best Interests;
2. The past and present wishes and feelings of the person;
3. The beliefs and values of the person; and
4. Any other factors that would have influenced the person if they had capacity.

Some decisions require the Decision Maker to appoint an IMCA if:

1. There is no person with a Lasting Power of Attorney or a Deputy appointed by the Court of Protection who is authorised to make the decision; and
2. There is no other person that it would be appropriate to consult with (other than one providing care or treatment in a professional capacity or who is being paid).

These decisions are those relating to:

1. The provision of accommodation by the local authority;
2. Serious medical treatment; and
3. The authorisation or renewal of a deprivation of liberty under the DoLS framework.

Under the Mental Capacity Act the Decision Maker must consider all relevant circumstances when making a decision (in addition to the specific factors). Relevant circumstances are defined in the Act as:

1. Circumstances of which the Decision Maker is aware; and
2. Circumstances that it would be 'reasonable' to regard as relevant.

It is the responsibility of the Decision Maker to identify and determine which factors are relevant when deciding on the need to consult with, and take into account the views of others.

Any decision made under Best Interests cannot be made solely on the basis of the person's:

1. Age;
2. Appearance;
3. Behaviour; or
4. Physical or mental health condition.

Any decision made must take into account:

1. All relevant circumstances;
2. The present wishes and feelings of the person (where known);
3. The person's past wishes and feelings;
4. The person's beliefs and values;
5. Any other factors that would have influenced the person if they had capacity; and
6. The views of other consulted about what is in the person's Best Interests.

Any decision made, and subsequent action taken to give effect that decision will be lawful so long as the Act has been applied and:

1. Reasonable steps have been taken to establish whether the person lacks capacity; and
2. Based on the evidence available, it is reasonable to believe that the person lacks capacity; and
3. Based on the evidence available, it is reasonable to believe that the decision made and/or action being taken is in the person's Best Interests; and
4. Any decision made does not lead to the unlawful use of restraint or deprivation of liberty; and
5. Any decision does not conflict with a decision made previously by a person with Lasting Power of Attorney (when the person is over the age of 18) or Deputy appointed by the Court of Protection.

Where there is an objection to the decision made, either by the person who lacks capacity or by someone with a close connection (such as a family member, close friend, Deputy, Attorney or carer) legal advice should be sought. In most cases, if the matter cannot be resolved by agreement, the Court or Protection should be asked to make the decision.

Under section 4A of the Act any decision cannot deprive the person of their liberty, unless:

1. The decision is made by the Court of Protection;
2. The decision is to deprive the person of their liberty in a care home or hospital and this is authorised through the Deprivation of Liberty Safeguards; or
3. The person is being deprived of their liberty in order to receive life sustaining or vital medical treatment whilst a decision is sought from the Court of Protection.

Restraint is defined under the Mental Capacity Act as:

1. Any act that uses, or threatens to use, force to carry out another function to which the person resists; or
2. Any act that restricts the person's freedom of movement, whether or not they resist.

Under section 6 of the Act any decision cannot authorise the use of restraint, unless:

1. The Decision Maker believes that it is necessary to restrain the person in order to prevent them from being harmed; and
2. There is evidence that restraint is a proportionate response to the likelihood and seriousness of harm.

Unless the decision relates to the provision of life sustaining treatment or action that is necessary to prevent serious harm, it must not conflict with a decision that has already been made by:

1. A Deputy appointed by the Court of Protection who has been authorised to make decisions about the matter to be decided; or
2. When the person is over 18, a person with Lasting Power of Attorney with the power to make the decision.

Sections 30-34 set out the rules around people who may lack capacity taking part in research projects.

Anybody carrying out research is required to have a formal process in place to ensure that:

1. People taking part in the research have capacity to consent; and
2. If a person does not have capacity, they only take part in the research in the specific circumstances set out below.

If a person does not have capacity to consent, a decision for them to participate in intrusive research can only be made under the Mental Capacity Act when the research project has been approved in accordance with s. 31 of the Act and is connected with:

1. The condition that is impairing or disturbing the functioning of the person's mind or brain; and
2. The treatment of such condition in the person, or others with a similar condition.

Furthermore, the decision can only be made when:

1. Taking part has potential benefit to the person;
2. Any burden (negative impact) on the person must be proportionate to the benefit of taking part; and
3. There is no Advance Decision to Refuse Treatment prepared by the person that refuses consent to take part in research of that kind.

Where there will be a negative impact this must:

1. Involve only a negligible risk of harm;
2. Not interfere with the person's privacy or freedom of action in a significant way; and
3. Not be unduly invasive or restrictive.

The body carrying out the research must take reasonable steps to identify and consult with the following people:

1. Any informal carer; and
2. Any person with a Lasting Power of Attorney or Court appointed Deputy; and
3. Any other person who has an interest in the person's welfare who is not acting in a professional or paid capacity; and
4. If neither of the above persons is available (or willing to be consulted) the body carrying out the research must make arrangements to consult another person who is appropriate to consult with but who has no connection to the research.

The following views must be sought from those consulted:

1. Advice about whether the person should take part in the research;
2. What the person's wishes and feelings may be about taking part in the project, if they had capacity.

If anyone consulted advises that the person would likely have declined to take part in the research if they had capacity, the body wishing to carry out the research must:

1. Not arrange for the person to take part in it; or
2. If the person has already started taking part, withdraw them from the research unless;
3. Medical advice is such that withdrawing the person from the research would carry significant risks to the person's health.

Where a decision is made for the person to take part in the research, they must be withdrawn from it if:

1. The person appears to object to the research; unless
2. the purpose of the research is to protect them from harm or reduce pain and discomfort; or
3. A carer or other person expresses the view that the person may no longer wish to be involved;
4. Where being part of the research was agreed to reduce significant risks to the person, those risks no longer exist.