Mental capacity assessments in practice

A mental capacity assessment is an evaluation of an individual’s ability, used to determine whether they can make a specific decision, at the exact time when it needs to be made. For example, they might have capacity to make decisions in relation to their health, but lack capacity to make decisions in relation to their finances.

The presumption under the Mental Capacity Act 2005 is always that someone is assumed to have capacity unless proven otherwise. There may be circumstances where this presumption is called into question, and a person’s capacity is in doubt. In these situations, a mental capacity assessment may be recommended to confirm whether or not the individual has the requisite capacity to make the specific decision.

Section 2 of the Mental Capacity Act 2005 explains that: ‘A person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.’

The impairment or disturbance referred to in this act can be temporary or permanent. Common examples include:

• acquired brain injuries;
• dementia or Alzheimer’s disease;
• learning disabilities;
• mental health;
• alcohol/substance use.

The assessment will identify whether the individual is able to:

• understand the information relevant to the decision;
• retain that information;
• use or weigh that information as part of the process of making the decision;
• communicate their decision (whether by talking, sign language or other means).

If they are unable to do one or more of these things, the assessor will conclude that the individual lacks capacity to make that specific decision. However, before finalising their conclusion, there are other principles that must also be considered:

• the assessor must ensure that they have taken all practicable steps to help the person make the decision, such as communicating with them in a clear and concise way that the individual will understand (eg translator, sign language);
• an unwise decision does not necessarily indicate that the individual lacks capacity;
• an individual’s age, appearance, condition or behaviour alone will not be sufficient grounds for an assessor to conclude that they lack capacity to make the decision.

In light of these principles it is important for the assessor to be provided with sufficient information about the individual in advance of the assessment taking place. Personal details about the individual, including past and present wishes and feelings, will help the assessor to take those practicable steps to promote the individual’s presentation during the assessment. Likewise, relevant persons such as family members or professionals such as a case manager should spend time explaining the assessment to the person concerned and help them to prepare in advance.

A common misconception is that an assessment of an individual’s capacity is about intelligence, or passing or failing a test.

This aspect of capacity assessments can be a source of anxiety and even embarrassment for  individuals. However, it is important to remember the real purpose of the assessment, which is to understand whether at that particular moment in time, an individual is able to make that particular decision. A finding of incapacity is not a blanket decision across all aspects of the person’s life.

Our Court of Protection team can assist by advising individuals, family members or professionals about capacity in more detail, and can support with and prepare an application to court where needed.