What is mental capacity?

If you are searching for care for yourself or a loved one, you will likely hear the term ‘mental capacity’ at some point.

It is often heard among families affected by dementia and gained attention during the rollout of the Covid vaccine.

What is the legal definition of mental capacity?

Mental capacity is the ability to make informed decisions.

Under the Mental Capacity Act 2005, someone is capable of making their own decisions if they can:

• Understand the information they need to make their decision
• Remember the information
• Apply that information to making their decision using reasoning and analysis 
• Communicate what their decision is

If someone is considered to lack capacity, it means they lack the capacity to make a specific decision on a specific matter, or take a specific action for themselves.

Why might someone lack mental capacity?

There can be long-term and short-term reasons why someone might lack the capacity to make a decision. 

Reasons why someone might lack capacity include:

• Dementia
• Severe mental health issues
• Severe learning disabilities
• Damage to their brain, such as through a stroke, an injury or substance misuse

Somebody does not necessarily lack capacity to make a decision if:

• They have any of the above conditions. A diagnosis does not equal a capacity assessment, they must have a separate assessment.
• They make bad or unwise decisions.
• They have low intelligence in general, not due to a disability or medical condition.
• They have been assessed as lacking the capacity to make a decision about something completely different. It is not an umbrella term.

For example, just because somebody cannot make complicated legal and financial choices does not mean they can’t decide what they have for dinner or where to go on holiday. In each circumstance, they must be considered to have capacity to make their own choice unless assessed otherwise, and be supported to do so.

Decisions that are more likely to warrant an assessment for capacity include:

• To consent to a medical procedure or medication
• To consent to receiving care or whether or not to move into a care home
• Legal and financial matters, such as whether to sell their house

Temporary mental incapacitation

If somebody is likely to regain capacity to make the decision, it should be delayed if possible. Deliberation includes whether:

• Their condition is treatable
• Their condition will improve over time, such as recovering from a brain injury or sobering up (being drunk or high affects mental capacity)
• They could potentially learn new skills or methods of communication that would enable them to make the decision for themselves

It is not always possible to defer a decision. For example, if somebody has been in a car accident and they are unconscious but in need of immediate, invasive surgery, somebody else will need to consent to this on their behalf.

Supporting someone to make decisions

Often people are very capable of making informed decisions with adjustments to help them. These could be:

• Support to understand relevant information. This could be through simplified explanations, videos or disability-friendly resources.
• Assistance to remember the information through notes and other memory aids.
• If they struggle with communication, the opportunity to try different ways to communicate their decision.
• They are supported to try to make the decision in different settings and at different times. For example, they may feel overwhelmed and stressed in a busy public place and so struggle cognitively, but be much more able when they are at home and they are not feeling tired. 

If no adjustments make any tangible difference to the person’s cognitive ability to make a decision, they may lack capacity and should seek assessment. They cannot be considered to lack capacity if no effort has been made to help them to make their own choices.

Assessment for mental capacity

Someone can only be considered to lack mental capacity to make decisions about something if they are properly assessed as such. There are two stages to an assessment, looking at the cause of a person’s cognitive impairment and how it affects their decision-making skills.

Who carries out the assessment depends on the individual and the circumstances but it could include:

• Collection of relevant background information to aid in the decision
• An interview with a psychiatrist, psychologist or other medical professional
• A visit from a social worker
• Speaking to the person’s carers or next of kin
• For some legal matters, such as wills, there is further legal involvement which can include law practitioners and legal tests

The person may be reassessed within an appropriate time frame.

Who makes decisions for someone who lacks mental capacity?

Day to day decisions are made by the person most involved in their care, such as their spouse, their main home care worker or their care home manager.

A more formal decision could be made by:

• An attorney under a Lasting Power of Attorney (LPA). There are two types of LPA:
  • Health and Welfare LPA
  • Property and Financial Affairs LPA
• A deputy under a Deputyship Order
• Professionals directly involved in the decision that needs to be made, such as healthcare and social care workers
• The Court of Protection

Next of kin do not automatically have the right to make formal decisions on behalf of an adult who lacks capacity. They must have the relevant LPA or deputyship to do so.

Those who make decisions on somebody else’s behalf must abide by the Mental Capacity Act Code of Practice. Under this, any decisions made on behalf of the person must:

• Be in their best interests
• Be as unrestrictive as possible, allowing them maximum freedom

Best interests are highly personal and are based on what the person would choose for themselves, if they could. They take into account their own beliefs and values, not those of the person making the decision. Often this includes speaking to multiple friends and family members, and the person themselves must be involved as much as possible.

A written record must be kept of how the decision was reached and why. For day to day decisions this is not necessary, but care workers often keep notes anyway.

If there is a dispute over what is in the person’s best interests, steps such as mediation, a case conference or bringing in a Mental Capacity Advocate may be taken.

Challenging a conclusion of mental incapacity

If somebody is unhappy with the decision that they or a loved one lacks capacity, they can ask the person who assessed them for reasoning and evidence behind their decision.

If not satisfied, they can get a second opinion from somebody appropriate (such as another psychiatrist).

If still not satisfied, they may wish to take the matter to the Court of Protection.