01273 610 611

“Straightforward Legal Support for Extraordinary Families”

Mental Capacity – supporting your clients to make decision

24.08.16

By Katherine Miller

It is too easy to assume that a person with a particular illness or disease, such as Alzheimer’s or someone with a learning disability doesn’t have mental capacity and is therefore unable to make decisions for themselves.  Such assumptions can have serious implications for an individual and, in the eyes of the law, is an incorrect approach to the situation.

In fact, we must always presume that someone has the mental capacity to make decisions for themselves unless it can be proven that they lack the ability to do so.  This important principal is set out in the Mental Capacity Act (MCA) 2005.

So what is mental capacity?

This is the ability to make a decision for yourself.  This can include simple decisions about daily life or more complex decisions about financial matters or medical treatment.  It is imperative to identify if a person has the mental capacity to make the specific decision you are asking of them and here’s some helpful steps to take in this process:

Step 1

The first step to determine if a person has mental capacity is to find out if they have an impairment of, or a disturbance in the functioning of, the mind or brain.  The MCA Code of Practice gives examples of an impairment or disturbance and these include dementia, significant learning difficulties, brain damage, the symptoms of alcohol or drug use and some forms of mental illness.

Step 2

The second step is to ask if the impairment or disturbance means that the person is unable to make a specific decision at the relevant time.

To make a decision you need to be 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 and
  • Communicate your decision (whether by talking, using sign language or another means).

It is necessary to determine a person’s mental capacity for the specific decision they are being asked to make.  Therefore, a more complex decision may require a higher level of mental capacity, particularly where there is more information to consider, weigh up and decide upon.

A person may have the ability to make certain decisions but, for other decisions, their mental capacity may be lacking.  It is essential that mental capacity is considered each time a decision needs to be made, as the nature of the decision and the information relevant to that decision will be different.

Key principles of the Mental Capacity Act

Some other key principles of the MCA state that:

  • 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. It may be necessary to assist the person in the decision making process by presenting information in a different way, choosing a better day or time of day to meet, seeing the person at home rather than an office setting or possibly delaying a decision until their mental capacity improves.
  • A person is not to be treated as unable to make a decision merely because he makes an unwise decision. We all have the right to make decisions that others may see as foolish or even wrong.  This does not necessarily mean that they haven’t understood the information available or weighed it up correctly.
  • You cannot establish a person’s lack of mental capacity merely by reference to their age, appearance or behaviour. By doing so, you could make incorrect assumptions and prevent them from making their own decisions.

How and when should mental capacity be assessed?

If there is any doubt as to a person’s mental capacity, then an assessment should be carried out.

An assessment can be carried out by any individual who is involved with the person whose mental capacity is in question.  The level of expertise needed to carry out an assessment will depend on the particular decision to be made.

For example, if the decision is reasonably straightforward, such as what to wear or what to eat, a family member or carer may assess whether a person can make their own decision.  If the decision is more complex, perhaps consenting or refusing medical treatment or entering into a legal document, it may be necessary for a professional mental capacity assessment to be carried out.  The assessor may be a GP, the consultant responsible for the person’s care or another qualified medical professional.

Supporting clients

Undertaking an objective assessment can enable those with limited mental capacity to make more decisions than they otherwise might have made.

It is essential not to limit a person’s autonomy by denying them the opportunity to make a decision when their mental capacity hasn’t been properly assessed.

Determining a person’s mental capacity and the Mental Capacity Act is a complex area and each person’s situation is unique and should be treated as such. What is fundamentally important is not to make assumptions that someone doesn’t have the mental capacity to make decisions, but rather assist your clients in getting the right support to meet their individual needs. For more information or to discuss a particular client’s requirements in confidence please contact us.

Leave a Reply

Please note: our response to comments will be for general information purposes only and does not constitute legal advice.

Your email address will not be published. Required fields are marked *


     Return to News