The Mental Capacity Assessment
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.
If any of the following indicators are present the person may notbe able to make their own decision and a mental capacity assessment should be carried out.
- Lacking a general understanding of the decision that needs to be made, and why it needs to be made;
- Lacking a general understanding of the likely consequences of making, or not making the decision;
- Being unable to understand, remember and use the information provided to them when making the decision; and
- Being unable to, or unable to consistently communicate the decision.
There may also be cause for concern if someone:
- Repeatedly makes an unwise decision that puts them at serious risk of harm, abuse or exploitation; or
- 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 as a matter in its own right and historical mental capacity assessments cannot be used to make judgements about current capacity, or to generalise on a person’s ability to make decisions. This ensures that Principle 1: The presumption of capacity is upheld.
The person who assesses mental capacity should be the person who is either:
- Involved in supporting the person at the time that the decision needs to be made; or
- The person with responsibility for making a decision if the person is unable to do so.
In all cases the person assessing capacity must understand the decision to be made and be able to provide all of the relevant information to be able to assess the person's ability to make the decision for themselves.
For example:
- A carer or support worker may assess the person's capacity to choose whether to have a bath or what to eat;
- A district nurse may assess their capacity to consent to having a dressing changed;
- A dentist may assess their capacity to consent to having a filling;
- A GP may assess their capacity to take a certain medication;
- A Deputy appointed by the Court may assess their capacity to manage finances;
- A social worker may assess their ability to make a decision where to reside;
- An Occupational Therapist may assess their ability to use a specific piece of equipment safely;
- A consultant may assess their ability to consent to major surgery.
If the decision relates to a legal transaction, it is the responsibility of a solicitor or legal practitioner to assess capacity.
There are 2 clear stages to the mental capacity assessment. Any assessment should begin with stage 1 and only proceed to stage 2 if the first stage is met.
Each stage is set out as a question to be answered as follows;
Stage 1: Is the person unable to make a particular decision at the time it needs to be made (the functional test)?
Stage 2: If so, is the inability to make a decision caused by an impairment of, or a disturbance in the functioning of the person’s mind or brain (the diagnostic test)?
Note: If the answer to Stage 1 is ‘Yes’ but the answer to Stage 2 is ‘No’, the person does not lack capacity. However, if there are concerns that the decision making of a person with capacity is being influenced by the coercive or controlling behaviour of another, a safeguarding or other response may be needed to reduce the risk of harm, abuse or neglect.
The functional test consists of 4 elements, each of which you must test the person's ability in. They are:
- The ability to understand information about the decision (the 'relevant' information);
- The ability to retain the information long enough to make the decision;
- The ability to use, or 'weigh up' the information as part of the decision making process; and
- The ability to communicate their decision through any means.
In order to make their own decision the person must be able to demonstrate their ability in all of the areas of the functional test. If the person is able to demonstrate ability in all areas, Stage 2 of the test does not need to be completed and they should be deemed to have capacity to make the decision.
When carrying out the functional capacity test you have a duty to apply the first 3 statutory principles of the Act, as defined in the table below.
| Principle | In Practice | |
|---|---|---|
| 1 | A person must be assumed to have capacity unless it is established that they lack capacity. | Every person from the age of 16 has a right to make their own decisions if they have the capacity to do so. Practitioners and carers must assume that a person has capacity to make a particular decision at a point in time unless it can be established that they do not. |
| 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. | People should be supported to help them make their own decisions. No conclusion should be made that a person lacks capacity to make a decision unless all practicable steps have been taken to try and help them make a decision for themselves. |
| 3 | A person is not to be treated as unable to make a decision merely because he makes an unwise decision. | People have the right to make a decision that others would see as 'unwise'. This does not automatically mean they lack capacity and they should not be treated as such. |
Applying the principles will ensure you do not:
- Begin with the presumption that the person lacks capacity to make the decision; and
- Focus the assessment on proving this to be so; rather than;
- Taking steps to try to support the person to make their own decision.
Click here to access guidance about applying Principle 1: The Presumption of Capacity.
Click here to access guidance about applying Principle 2: Practicable Steps to Support Decision Making.
Click here to access guidance about applying Principle 3: The Right to make an Unwise Decision.
Before you can carry out a functional test you must be clear what decision it is that must be made so that you can:
- Ensure that the information you provide about the decision is relevant; and
- Reach a clear conclusion about the person's ability to make that specific decision.
Mental capacity can only lawfully be assessed in regard to a 'specific decision to be made at a specific time'. This means that you must never assess a person's capacity to make decisions in general.
The decision to be tested must be clearly recorded on the formal record of the mental capacity assessment and, wherever possible set out in line with the first 3 statutory principles. For example:
- Is Mr Jones able to make a decision about where to live?; and not
- Does Mr Jones lack capacity to make a decision about where to live?
The following are all steps that you should take before you carry out the functional test of capacity:
- Make sure that you understand the nature of the decision to be made;
- Make sure you understand the range of options available;
- Make sure you consider and prepare the information that may be relevant to the decision;
- Establish whether there is a donee of a Lasting Power of Attorney or a Deputy appointed by the Court and arrange for them to be involved;
- Consider any need that you may have for additional support (based on your own skills and abilities);
- Consider any support the person may need during the assessment;
- g) Read any information that is available to you that could indicate the practicable steps that could support the person to make their own decision;
- Establish how the person is currently supported to make decisions and the kind of decisions they are able to make; and
- Establish if any information has already been given to the person, what this was and how it was received.
In order for a person to make their own decision they must be able to demonstrate all of the following:
- A general understanding of the decision to be made;
- A general understanding about why the decision needs to be made;
- A general understanding about the effects of deciding one way or another, or of making no decision at all.
It is important not to assess a person's understanding until they have been:
- Provided with all of the relevant information to the decision; and
- All practicable steps have been taken to support them to understand it.
Click here to access guidance about deciding what information is 'relevant' information.
Click here to access guidance about deciding what steps are 'practicable' steps.
In order to make their own decision the person needs to be able to demonstrate that they are able to retain (remember) the relevant information long enough to be able to make a decision. There is no requirement for them to be able to retain the information longer than that.
It is important not to assess a person's ability to retain (remember) information until they have been:
- Provided with all of the relevant information to the decision; and
- All practicable steps have been taken to support them to understand and retain it.
Click here to access guidance about deciding what information is 'relevant' information.
Click here to access guidance about deciding what steps are 'practicable' steps.
If a person needs to be provided with the information often in order to retain it, the following are examples of some of the steps that it may be practicable to take:
- Telephoning, emailing or texting the person regularly to provide them with the information;
- Providing the information in a simple format (such as a poster or leaflet) that the person can understand with minimal support;
- Arranging for a carer, support worker, advocate or other person to provide them with the information regularly.
In order to make their own decision the person must be able to demonstrate an ability to use and weigh up the relevant information provided to them in order to arrive at a decision.
Everybody uses information differently when making a decision, and you must ensure that you do not make a judgement about a person's ability to weigh up based on the fact that they have not used the relevant information in the same way as you.
Sometimes people will be able to understand and retain relevant information but be unable to use that information in a balanced way to make a decision. For example:
- They may be driven by a compulsion to act in a particular way;
- They may act on impulse; or
- They may be motivated by instant gratification.
Unwise decisions
The 3rd statutory principle of the Mental Capacity Act sets out a person's right to make an unwise decision.
An unwise decision is any decision made by the person that you, or anyone else thinks is not the best decision for them.
It is important you recognise that every decision a person makes will be influenced by their:
- Attitudes;
- Beliefs;
- Values; and
- Preferences.
It is not your place (or the place of anyone else) to judge whether or not:
- A person's attitudes, values, beliefs or preferences are right or wrong; or
- Whether the decision that a person makes based on them is wise or unwise.
There may be cause for concern if someone:
- Repeatedly makes an unwise decision that puts them at serious risk of harm, abuse or exploitation; or
- Makes a particular unwise decision that is obviously irrational or out of character.
Mr Garvey is a 40 year old man with a history of mental health problems. He sees a Community Psychiatric Nurse (CPN) regularly. Mr Garvey decides to spend £2,000 of his savings on a camper van to travel around Scotland for 6 months. His CPN is concerned that it will be difficult to give Mr Garvey continuous support and treatment while travelling, and that his mental health might deteriorate as a result.
However, having talked it through with his CPN, it is clear that Mr Garvey is fully aware of these concerns and has the capacity to make this particular decision. He has decided he would like to have a break and thinks this will be good for him.
Just because, in the CPN's opinion, continuity of care might be a wiser option, it should not be assumed that Mr Garvey lacks the capacity to make this decision for himself.
In order to make their own decision the person must be able to demonstrate an ability to communicate their decision through any means.
The Mental Capacity Act anticipates that very few people will be unable to communicate their decision through any means. The only examples the Code of Practice gives where it would be appropriate to conclude that the person is unable to communicate their decision are:
- When the person is unconscious or in a coma; and
- When the person is conscious but has a rare condition, such as 'locked in' syndrome that means they cannot speak or move at all.
It is your responsibility to establish and take all practicable steps to:
- Communicate with the person;
- Provide relevant information to the person; and
- Support the person to communicate their decision.
Click here to access guidance about deciding what steps are 'practicable' steps.
Stage 2 is referred to as the 'diagnostic' test of capacity.
This purpose of this stage in practice is to:
- Consider the evidence regarding the presence of an impairment of, or disturbance in the functioning of the mind or brain; and
- Decide whether such an impairment or disturbance exists; and
- If it exists, decide whether the impairment or disturbance is the reason that the person is unable to make the decision (the causative nexus).
An impairment of, or disturbance in the functioning of the mind or brain can be either:
- Permanent or temporary;
- Diagnosed or undiagnosed.
Click here to access further guidance about impairments of, or disturbances in the functioning of the mind or brain, including examples of impairments and disturbances that may exist.
Sometimes there is clear evidence of the existence of an impairment or disturbance, for example there may be a medical diagnosis of Dementia or a learning disability. At other times evidence may be less clear.
Even though the impairment or disturbance does not have to be diagnosed you must not make a judgement that it exists solely on the basis of:
- The person's age;
- The person's outward appearance; including;
- Any physical disability or sensory impairment; or
- The person's behaviour (including making an unwise decision).
If you are unclear about the presence of an impairment or disturbance you must seek appropriate advice of your line manager, supervisor or another professional to support you to make this decision.
It has been established in case law that all capacity assessments must be able to show how the causative nexus has been proven.
Records should explicitly state:
- That you are satisfied the causative nexus is proven;
- Why you are satisfied that it is proven (the evidence used); and
- How exactly the person’s impairment or disturbance of their mind or brain makes them unable to make their own decision (the causal link).
For further information on the case law, see:
PC and NC v City of York Council [2013] EWCA Civ 478 at paragraph 56;
Heart of England NHS Trust [2014] EWHC 342 (COP).
If stage 2 concludes that there is no impairment or disturbance (or that this is not the reason they cannot make the decision), you should:
- Deem the person to have capacity to make the decision; and
- Allow them to make their own decision; by
- Providing support as practicable to enable them to do so.
Click here to access guidance about the steps that you must take to support a person to make their own decision.
Coercion and undue influence
The person may be subject to coercion or undue influence if:
- They find it difficult to make a decision; but
- They do not have an impairment of, or disturbance in the functioning of the mind or brain; or
- That disturbance or impairment is not likely to be the reason they are unable to make the decision.
If this is the case a safeguarding concern may need to be raised on order to protect them from the effects of the coercive or controlling behaviour of others.
Some people will have an impairment of, or disturbance in the functioning of their mind or brain that leads them to have:
- Periods where they are able to make their own decisions; and
- Periods where they lack capacity to make decisions.
Some of the things that can lead to a fluctuating ability to make decisions include:
- Periods of anxiety or distress;
- Periods of delusion, mania or Depression;
- The effect of medication;
- Acute illness or severe pain.
If an urgent decision is not required you should always consider delaying the assessment so that the person can make the decision for themselves.
If a person is known to have fluctuating capacity you should try to ascertain (at a time when they have capacity) their thoughts, wishes and feelings in regard to decisions that should be taken during periods when they lack capacity. This will ensure that you can have full regard for this when making any Best Interest decision.
Executive capacity is the term used to describe a person’s ability to enact a theoretical decision in practice. In other words, the ability to do what they say they will do when the moment is upon them.
Executive capacity challenges occur when a person acts in a way that is not as expected and their action places themselves (or others) at risk of harm, abuse or neglect.
Executive capacity challenges are not the same as unwise decision-making or changing your mind – both things everyone has a right to do.
A person’s executive capacity should be a consideration when carrying out a mental capacity assessment. If there is a risk that they may not enact their decision, depending on the circumstances risk management strategies may need to be agreed.
If a person is unable to act upon a decision they have been assessed as having capacity to make, it could be that they actually lack capacity on the basis of their executive functioning. However, this conclusion should only ever be reached when there is clear evidence of a repeated mismatch between what the person says they will do and what they actually do. It is unlikely that a single mental capacity assessment will be able to reach this conclusion.
Executive capacity is an emerging concept and subject to ongoing case law. Legal advice should be sought as required.
The same statutory principles and 2 stage test applies for every assessment of mental capacity. However the nature of the information and practicable steps will vary depending on:
- The person's needs;
- The nature of the decision to be made; and
- The urgency in which the decision needs to be made.
It should be clear from the person's care plan or health plan the steps that should be taken by others to support them to make their own everyday decisions.
A carer (paid or unpaid) assessing a person's capacity to make a decision about or consent to everyday care or routine treatment is not expected to carry out the same depth of assessment as a professional assessing a person's capacity to make a specific or complex decision.
Shelby is a 16 year old with Autism. The mental capacity assessment needs to determine whether Shelby is able to make a decision about where to live when she leaves residential school.
Shelby has 9 months before she needs to reach a decision. As such the assessor:
- Arranges to meet with Shelby's Speech and Language Therapist to understand her specific communication needs;
- Plans with the SALT the best way to provide relevant information to Shelby;
- Provides the information to Shelby gradually over several months, which includes going to visit several accommodation options and talk to the people who live there;
- Arranges for the relevant information to be provided regularly by teaching staff to support Shelby to retain it.
Geoff has Dementia and lives in a care home. He needs to make a choice about what to eat for lunch. The care assistant shows Geoff 3 options using photographs and explains to Geoff what each option is. Geoff turns his nose up at the first 2 options but points to the 3rd option and smiles.
You should make a determination about the person's ability to make the decision for themselves when:
- You have provided the person with all of the information relevant to the decision;
- You have taken all practicable steps to support the person to understand, retain and use the information to make their own decision; and
- You have taken all practicable steps to support the person to communicate their decision through any means.
If you have not taken all practicable steps and subsequently decide that the person lacks capacity any Best Interests decision that you make on their behalf is not likely to be a lawful decision.
As the assessor it is your responsibility to make the determination. However, when making a decision the following must be taken into account:
- Any views of the person about their capacity to make the decision; and
- The basis for that view; and
- Any views of others about the person's ability to make the decision; and
- The basis for that view.
The outcome of the mental capacity must be that either:
- The person has capacity to make the decision; or
- The person lacks capacity to make the decision.
Click here to access a flowchart summarising how to determine mental capacity.
If it is not clear whether or not a person has capacity this determination must be made on the balance of probabilities.
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:
- Some evidence that suggests a person is unable to make the decision; and
- 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.
The evidence that you have used to make the determination should be clearly recorded, and you should seek the professional opinion of others as required.
If you are not sure whether the person has capacity or not, you should:
- Seek the views and support of your line manager as required; and
- Consider further steps that you may need to take to gather further evidence.
Reasonable belief
Carers (paid and unpaid) supporting people with decisions related to everyday care or routine treatment are not required to make a decision based on the balance of probabilities. Instead they must have a reasonable belief that the person lacks capacity to make the decision.
In order for a carer to have reasonable belief they must be satisfied that they have:
- Taken reasonable steps to provide all of the relevant information about the decision; and
- Taken reasonable steps to support the person to understand and use the information to make their own decision; and
- Used objective reasons for reaching a decision about capacity.
If you have determined that the person is able to make their own decision you should:
- Allow them to make their own decision; by
- Providing support as practicable to enable them to do so.
If the decision that the person makes is likely to put them at risk of harm (or put others at risk of harm) you must consider the need to take any action under:
- The Mental Health Act 1983; or
- Adult or Children's safeguarding procedures.
Although every person has the right to make an unwise decision further assessment of capacity may be required if they:
- Repeatedly make an unwise decision that puts them at serious risk of harm, abuse or exploitation; or
- Make a particular unwise decision that is obviously irrational or out of character.
If you are concerned that a person is making decisions (unwise or otherwise) as a result of coercion or undue influence a safeguarding concern may need to be raised on order to protect them from the effects of the coercive or controlling behaviour of others.
If you have determined that the person is not able to make their own decision, and that they 'lack capacity' to do so you should ask the question:
- Is it likely that the person will be able to make the decision in the future? and
- If so, can the decision be delayed until such a time when they can do so? and
- If so, you should consider delaying the assessment so that the person can make the decision for themselves.
If the decision cannot be delayed you must establish whether there is either:
- A donee of a Lasting Power of Attorney with the authority to make the decision in their Best Interests; or
- A Deputy appointed by the Court of Protection with the power to make the decision in their Best Interests; and
- If so, allow them to make the decision.
If the decision relates to emergency medical treatment and delaying the decision to allow a donee or Deputy to make it would likely lead to significant harm or loss of life occurring you should proceed to make the decision, so long as you are authorised to make it.
If the decision relates to specific but non-urgent medical treatment you must also establish whether the person has prepared an Advance Decision to Refuse Treatment in relation to the treatment, and if so give full weight to this, and uphold the original decision made by the person unless:
- It has been withdrawn by the person; or
- The person has subsequently appointed a Donee of a Lasting Power of Attorney to make the decision (thus overruling the ADRT); or
- The person has not acted in a way that is consistent with the ADRT
Since being diagnosed with Depression and making an ADRT refusing all life saving treatment Susan has become engaged, bought her first home and is planning to adopt a baby. She is now unconscious following an accident and without life sustaining treatment is likely to die. The clinician deems that her recent behaviour contradicts with the ADRT and that it is now likely that Susan would want to receive the treatment.
If there is no other person or legal instrument authorised to make the decision, you should proceed to make a decision by applying the Best Interests principle, so long as the decision is not a decision that must be made by the Court.
Click here to access guidance about the decisions that can and cannot be made under the Act.
Click here to access guidance about applying the Best Interests principle to make decisions.
If you are not permitted to make the decision you should seek advice as required in order to seek permission from the Court of Protection to make an application requesting they make a determination about what is in the person's Best Interests.
A formal record of the assessment and determination should be recorded as soon as possible after it has been carried out.
It is your responsibility to familiarise yourself with any specific local requirements in regards to:
- The timeframe for making a formal record; and
- The format for making a formal record.
Any assessment of capacity that is carried out through the course of providing routine care or treatment to a person does not have to be formally recorded, although should be if:
- It is the first time that the person's capacity has been assessed to make a decision of that kind;
- The person's capacity has changed; or
- The person assessing capacity is concerned about the implications of the decision that the person has made (or not made).
Where the decision to be made is specific or complex the Code of Practice requires you to make a proportionate formal record. The record must demonstrate that the statutory principles of the Act have been applied and each element of the functional test assessed.
The record should contain all of the following:
- The evidence that has been used to confirm the presence of an impairment or disturbance of the mind or brain;
- The decision to be made;
- The relevant information that has been provided to the person;
- The practicable steps that have been taken to support the person to make their own decision;
- The outcome of each element of the functional test of capacity;
- The reason that the person has been deemed to have, or to lack capacity to make the decision for themselves; and
- Where the person has been deemed to lack capacity, the consideration that has been given to delaying the decision.
The formal record of the mental capacity assessment may be used as evidence:
- During any challenge of a decision by the person (or their representative) about their capacity; or
- By the Court of Protection should an application to the Court be required.
The causative nexus is the direct link between the person’s impairment or disturbance in the functioning of the mind or brain, and their ability to make their own decision.
Records should explicitly state:
- That you are satisfied the causative nexus is proven;
- Why you are satisfied that it is proven (the evidence used); and
- How exactly the person’s impairment or disturbance of their mind or brain makes them unable to make their own decision (the causal link).
For decisions not relating to routine care and treatment you should take steps to notify the following people of the outcome of the assessment:
- The person who lacks capacity;
- Any representative of the person;
- Any Donee of a Lasting Power of Attorney or Deputy;
- Anyone that the person has asked you to notify; and
- Anyone else that you deem it relevant to notify, either with the person's consent or in their Best Interests if they lack capacity to consent.
There is no legal requirement to provide a copy of the formal record of the mental capacity assessment to anyone else. However, you should consider providing it to:
- The person who lacks capacity;
- Anyone that the person has asked you to provide a copy to;
- The Court of Protection at their request; and
- Any other person you deem it relevant to receive a copy, with the consent of the person or in their Best Interests if they lack capacity to consent.
A review of the person's mental capacity should be carried out whenever:
- A person assessed as being able to make their own decision starts to act in a way that may suggest they are no longer able to do so; or
- A person assessed as lacking capacity to make their own decision behaves in a way, or learns a new skill that indicates they may now be able to do so.
If a person has been assessed as unable to make decisions about their everyday care or routine treatment this should be reviewed:
- Whenever a Care and Support Plan (or health plan) is reviewed; or
- If the person is under 18 whenever an Education, Health and Care Plan is reviewed;
- During any other Care and Support process, including safeguarding; and
- By anyone supporting the person each time that an act is carried out to implement a Best Interests decision.
Last Updated: February 5, 2024
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