Introduced by the Mental Capacity Act 2005, the Mental Capacity Assessment is the test to determine whether a person aged 16 or over is able to make a specific decision at a particular time.
The assessment consists of a 2-stage test. The person undertaking the assessment must be able to answer ‘Yes’ to Stage 1 before considering Stage 2.
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 disturbance in the functioning of the person's mind or brain (the diagnostic test)?
Guidance on Stage 1
The Mental Capacity Act says that a person is unable to make their own decision if they cannot do one or more of the following four things:
- 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; and
- 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.
Guidance on Stage 2
An impairment of, or disturbance in the functioning of the mind or brain can be either:
- Permanent or temporary;
- Diagnosed or undiagnosed.
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 5 key principles of the Mental Capacity Act
The Mental Capacity Act is underpinned by 5 key principles, 3 of which must be considered at each of the stages of the functional assessment:
- Presumption of capacity: Every person has the right to make his or her own decisions and must be assumed to have capacity to do so unless it is proved otherwise. This means that you cannot assume that someone cannot make a decision for themselves just because they have a particular medical condition or disability;
- The right to be supported to make their own decisions: A person must be given all practicable help before anyone treats them as not being able to make their own decisions. This means you should make every effort to encourage and support people to make the decision for themselves. If lack of capacity is established, it is still important that you involve the person as far as possible in making decisions; and
- The right to make an unwise decision: People have the right to make decisions that others might regard as unwise or eccentric. You cannot treat someone as lacking capacity for this reason. Everyone has their own values, beliefs and preferences which may not be the same as those of other people.
The remaining 2 principles must be considered when making decisions about any person who has been assessed as lacking capacity to make a decision:
- Best Interests: Anything done for or on behalf of a person who lacks mental capacity must be done in their Best Interests; and
- Least Restrictive Option: Someone making a decision or acting on behalf of a person who lacks capacity must consider whether it is possible to decide or act in a way that would interfere less with the person’s rights and freedoms of action, or whether there is a need to decide or act at all. Any intervention should be weighed up in the particular circumstances of the case.