Assessing Mental Capacity and Making Decisions

1. The Mental Capacity Assessment

When a Mental Capacity Assessment must be carried out

A  mental capacity assessment must be carried out whenever;

  1. There are doubts over the ability of any person (from the age of 16) to make a particular decision at a particular time; and
  2. There is a belief that the reason that the person may be unable to make their own decision is because of an impairment of, or a disturbance in the functioning of the mind or brain.
Need to Know

Under the Act mental capacity is both ‘decision specific’ and ‘time specific’. This means that the principles of the Act must be applied each time that a decision needs to be made.

The purpose of the Mental Capacity Assessment

The purpose of the mental capacity assessment is to;

  1. Determine the presence of an impairment of, or disturbance in the functioning of the mind or brain (stage 1); and
  2. Where an impairment or disturbance exists, determine whether this is preventing them from making the decision (stage 2).

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.

Understanding information

Under the Mental Capacity Act it is important that information about 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.

It is not lawful to decide that a person cannot understand information when it has been given to them in an inaccessible way.

Retaining information

There is no legal 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.

Weighing up information to make a decision

Under the Mental Capacity Act a person is deemed able to weigh up information to make a decision if;

  1. They understand the implications of deciding one way or another (the risks and benefits of the different options); and
  2. They understand the consequences of not making a decision.

The Mental Capacity Act only expects the practitioner to assess the person’s ability to understand those implications and consequences that are ‘reasonably foreseeable’. 

Communicating the decision

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

It is not lawful to make a decision about the person’s ability to communicate based solely on their ability to communicate verbally.

The balance of probability

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.

2. Decisions that can be made under the Act

The Decision Maker

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 CCG) to make a decision on their behalf without the need to go to Court.

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.

Need to Know

The role of the Decision Maker will normally be the responsibility of the following people, where they exist;

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

Decisions that can be made

A range of decisions can be made by the Decision Maker, including;

  1. Everyday decisions, such as what to wear, what to eat 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 can refer the matter to the Court of Protection if a decision cannot be made about;

  1. The person’s mental capacity;
  2. What may be in the person’s Best Interests; or
  3. The decision is particularly complex; or
  4. The decision that is made is contested by a member of the person’s family and a resolution cannot be reached.
Need to know
If the decision to be made relates to life sustaining treatment the Decision Maker must not be a person motivated by a desire (or a perceived desire) to bring about the person’s death.

3. Decisions that cannot be made

There are some decisions that cannot ever be made on behalf of a person. These are called ‘excluded decisions’ and are set out in sections 27, 28, 29 and 62 of the Mental Capacity Act.

If a person is found to lack capacity to make any of these decisions;

  1. Action should be taken as appropriate to safeguard the person from any risk of harm or abuse; and
  2. Legal advice should be sought as required to determine the appropriate course of action.

Decisions concerning family relationships (section 27)

  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.

Mental Health Act matters (section 28)

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.

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 any decision made cannot be made under the Mental Capacity Act.

This is because the Mental Capacity Act cannot lawfully be used to;

  1. Make a decision that is not in the person’s Best Interests;
  2. Make a decision that would deprive a person of their liberty (including compulsory detention);
  3. Restrain a person (unless doing so is necessary to protect the person who lacks capacity and doing so is in proportion to the likelihood and seriousness of harm); and
  4. Go against any Advanced Decision to Refuse Treatment (ADRT) that may exist.

Voting Rights (section 29)

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.

Unlawful killing or assisting suicide (section 62)

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

4. Making Decisions under the Act

The Best Interests principle

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.

It is important that the Best Interests principle under the Mental Capacity Act is not confused with any other phrase ‘best interests’ that may appear in other contexts.

Before making a decision

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
  2. Delay the Best Interest decision to see if the person regains capacity; so that
  3. If the person regains capacity, they are able to make their own decision.

The role of the person in the 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.

It is unlawful to solely base any decision not to involve the person directly on any of the following;

  1. Their age;
  2. Their appearance;
  3. Their behaviour; or
  4. A physical or mental health condition.
Need to Know
Generally, something is deemed ‘reasonably practicable’ if anybody that is asked would deem it to be an appropriate action based upon the presenting circumstances.

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 role of others

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 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.

The Independent Mental Capacity Advocate (IMCA)

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

  1. There is no donee of a Lasting Power of Attorney authorised to make the decision; and/or
  2. There is no Deputy appointed by the Court of Protection with powers to make the decision; and
  3. There is no other person (carer, Deputy or donee of a Lasting Power of Attorney) that it would be appropriate to consult with.

These decisions are those relating to;

  1. Accommodation;
  2. Serious medical treatment; and
  3. The authorisation or renewal of a deprivation of liberty under the DoLS framework.

Relevant circumstances

Under the Mental Capacity Act the Decision Maker must consider all relevant circumstances when making a decision. Relevant circumstances are defined in the Act as;

  1. Circumstances of which the Decision Maker is aware; and
  2. Circumstances that it would be deemed ‘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.

Making a decision

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 views of the person (where known);
  3. The person’s past and present 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.

Lawful decision making

Any decision made, and subsequent action taken to 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.

5. Decisions in Specific Circumstances

Decisions that deprive the person of their liberty

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 and this is subject to court approval.

Decisions to use restraint

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.

Conflicts with other decisions

Unless the decision relates to the provision of life sustaining treatment it cannot 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.

Decisions to take part in research

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 under the Mental Capacity Act can only be made when the research 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 be;

  1. Negligible;
  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 wishing to carry out research must take reasonable steps to identify and consult with the following people when making a Best Interest decision;

  1. Any informal carer; and
  2. Any donee of 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 wishing to carry out the research must make arrangements to consult another person who they deem it 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.

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