8.1 Mental Capacity

1. Introduction

The Mental Capacity Act 2005 (MCA) provides a statutory framework to empower and protect people who may lack mental capacity to make decisions for themselves, and establishes a framework for making decisions on their behalf. This applies whether the decisions are life changing events or everyday matters.

Whenever the term ‘a person who lacks capacity’ is used, it means a person who lacks mental capacity to make a particular decision or take a particular action for themselves at the time the decision or action needs to be taken. This reflects the fact that people may lack mental capacity to make some decisions for themselves, but will have mental capacity to make other decisions. For example, they may have mental capacity to make small decisions about everyday issues such as what to wear or what to eat, but lack mental capacity to make more complex decisions about financial matters.

It also reflects the fact that a person who lacks mental capacity to make a decision for themselves at a certain time may be able to make that decision at a later date. This may be because they have an illness or condition that means their capacity changes. Alternatively, it may be because, at the time the decision needs to be made, they are unconscious or barely conscious (for example because of an accident or being under anaesthetic or that their ability to make a decision may be affected by the influence of alcohol or drugs).

Finally, it reflects the fact that while some people may always lack mental capacity to make some types of decisions – for example, due to a condition or severe learning disability that has affected them from birth – others may learn new skills that enable them to gain capacity and make decisions for themselves’ (Mental Capacity Act: Code of Practice).

The MCA legislates in relation to:

• allowing adults to make as many decisions as they can for themselves;
• enabling adults to make advance decisions about whether they would like future medical treatment;
• allowing adults to appoint, in advance of losing mental capacity, another person to make decisions about health and welfare or finance and property on their behalf at a future date;
• allowing decisions concerning health and welfare or property and finance to be made in the best interests of adults when they have not made any future plans and cannot make a decision at the time;
• ensuring an NHS body or local authority appoints an independent mental capacity advocate to support a person who cannot make a decision about serious medical treatment, or about hospital, care home or residential accommodation, when there are no family or friends who can be consulted (see Independent Mental Capacity Advocates and Independent Mental Health Advocates chapter);
• providing protection against legal responsibility for carers who have honestly and reasonably seek to act in the person’s best interests;
• providing clarity and safeguards around research in relation to those who lack capacity.

All decisions taken in the adult safeguarding process must comply with the MCA. It is always important to establish the mental capacity of an adult who is at risk of abuse or neglect, should there be concerns over their ability to give informed consent to:

• planned interventions and decisions about their safety;
• their safeguarding plan and how risks are to be managed to prevent future harm.

The MCA relates to people over the age of 16 years old. However, these SAB policies and procedures apply only to adults over the age of 18 years.

2. Principles of the Mental Capacity Act

Under the MCA, the following five principles apply:

1. It must be assumed that a person has mental capacity to make their own decisions, unless they have been assessed as lacking mental capacity.
2. A person should not be treated as unable to make a decision unless all practical steps to help them do so have been taken without success.
3. A person should not be treated as unable to make a decision just because they make a decision that seems to others to be unwise or bad.
4. An act done or decision made on behalf of a person who lacks mental capacity must be done, or made, in their best interests.
5. Before an act is done, or a decision is made, staff must consider whether its intended purpose can be achieved in a way that is less restrictive of the person’s rights and freedom of action.

These five principles should inform all actions when working with a person who may lack or have reduced mental capacity and should be evidenced when making decisions on their behalf.

3. Assessing Capacity

It must always be assumed that an adult has the mental capacity to make their own decisions unless it is established that they lack the capacity to do so. This means that anybody who claims an adult lacks mental capacity should be able to provide evidence in support of this.

They need to demonstrate, on the balance of probabilities, that the adult lacks the mental capacity to make a particular decision, at the time it needs to be made. This means being able to demonstrate it is more likely than not that the person lacks capacity to make the decision in question.

3.1 Two Stage Test

To help assess if a person lacks mental capacity, the MCA sets out a two stage test:

Stage 1: The Functional Test – can the adult make the decision in question?

This test looks at whether the adult is able to make the required decision.

Practical and appropriate support should be provided to help the adult make the decision for themselves if required.

An adult is considered unable to make a decision if they cannot:

1. understand information about the decision to be made (known as the ‘relevant information’);
2. keep that information in their mind;
3. use or weigh up that information as part of the decision making process; or
4. communicate their decision (by talking, using sign language or any other means).

There only needs to be evidence in one of these areas, not all of them.

If the adult cannot make the decision in question – even with support – Stage 2 must then be considered.

Stage 2: The Diagnostic Test – is the adult unable to make the decision because of an impairment of, or a disturbance in, the functioning of their mind or brain?

This requires evidence to show the person has an impairment or disturbance of the mind or brain. Examples include:

• conditions associated with some types of mental illness;
• dementia;
• significant learning disabilities;
• the long-term effects of brain damage;
• physical or medical conditions that cause confusion, drowsiness or loss of consciousness;
• delirium;
• concussion following a head injury; and
• symptoms of alcohol or drug use.

If a person does not have such an impairment or disturbance of the mind or brain, they will not lack mental capacity under the MCA.

Once the adult has been identified as having an impairment or disturbance in the functioning of the mind or brain, it is important to check that their inability to make the decision is because of this impairment. This is known as the ‘causative nexus’ (PC and NC v City of York Council [2013] EWCA Civ 478). Only where it can be reasonably said that the person cannot make the decision because of the impairment of their mind, can it be said that they lack mental capacity to make the decision.

4. Safeguarding and Mental Capacity

During a safeguarding enquiry, important decisions will have to be made throughout the process. It is therefore vital that – where an adult does not have mental capacity – decisions made or action taken on their behalf are in their best interests.

An assessment of an adult’s mental capacity should be considered in all safeguarding cases where:

• there is a formal diagnosis of cognitive impairment;
• a neuro-psychological assessment testing suggests they have cognitive impairment;
• concerns about the person’s mental capacity that have been raised by others;
• there are discrepancies in the person’s own evaluation of their abilities;
• there is collateral evidence suggesting a change in their personality;
• they fail to learn from their mistakes;
• they repeatedly make risky or unwise decisions.

5. Recording

The two stage test should be used as a framework for recording the assessment of mental capacity, so that the evidence for decision making is clear.

Recording needs to be clear and, where possible, extracts taken from conversations practitioners have had with the adult, to evidence the outcome.

6. Making Decisions on behalf of Someone who Lacks Mental Capacity

If, having taken all practical steps to support the adult to make their own decision, it is decided that a decision should be made for them, that decision must then be made in their best interests (See Section 8, Best Interests)

It is important to also consider whether there is another way of making the decision which might not affect the person’s rights and freedom of action as much (known as the ‘least restrictive alternative’ principle).

See also Promoting Less Restrictive Practice: Reducing Restrictions Tool for Practitioners (ADASS and LGA) 

6.1 Decision makers

Different people can make decisions or act on behalf of someone who lacks mental capacity. The person making the decision is known as the ‘decision maker’, and it is their responsibility to decide what would be in the best interests of the person who lacks mental capacity.

For most day to day actions or decisions, the decision maker will be the carer most directly involved with the person at the time.

Where the decision involves the provision of medical treatment, the professional proposing the treatment is the decision maker.

Where nursing or paid care is provided, the nurse or paid carer will be the decision maker.

In safeguarding cases, the practitioner who is undertaking the enquiry will be the decision maker for decisions relating to the safeguarding process.

In some cases, the same person may make different types of decision for someone who lacks mental capacity. For example, a carer may carry out certain acts in caring for the person on a daily basis, but if they are also an attorney, appointed under a Lasting Power of Attorney (LPA), they may also make specific decisions concerning the person’s property and financial affairs or health and welfare.

A decision may also, at times, be made jointly by a number of people. For example, when a care plan for a person who lacks capacity is being developed, different health or social care staff might be involved in making decisions or recommendations about their care package. Alternatively, the decision may be made by one practitioner within the team. A different member of the team may then implement that decision, based on what the team has ascertained to be the person’s best interests. Practitioners need to ensure that someone is representing the adult, such as an independent mental capacity advocate (IMCA) or a relevant person’s representative (RPR).

All best interests decisions under the MCA should be made by consensus.  If the parties cannot agree then steps should be taken to resolve the disagreement, e.g. re-assessing the person’s needs.  If agreement cannot be reached then any public bodies involved will need to consider whether to apply to the Court of Protection.

6.2 Lasting powers of attorney, court appointed deputy and the Office of the Public Guardian

A lasting power of attorney (LPA) allows an adult to appoint someone who will act on their behalf if they lose mental capacity in the future. LPAs are registered with the Office of the Public Guardian (OPG).

A court appointed aeputy is appointed by the Court of Protection. Depending on the terms of their appointment, deputies can take decisions on welfare, healthcare and financial matters as authorised by the Court of Protection but they are not able to refuse consent to life sustaining treatment. Deputies are only appointed if the Court cannot make a one off decision to resolve the issues. The OPG supervises deputies appointed by the Court and provides information to help the Court make decisions.

Attorneys and deputies are legal representatives. They can be a member of the person’s family or a friend; it does not have to be a legal professional.

6.3 Independent mental capacity advocates

See also Independent Mental Capacity Advocates and Independent Mental Health Advocates chapter.

Independent mental capacity advocates (IMCA) are appointed to support a person who lacks mental capacity and has no one to speak for them. IMCAs have to be involved where decisions are being made about serious medical treatment or a change in the adult’s accommodation where it is provided, or arranged, by the NHS or a local authority. The IMCA represents the person’s wishes, feelings, beliefs and values, and brings all relevant factors to the attention of the decision maker. IMCA services are provided by organisations that are independent of the NHS and local authorities.

6.4 Forward planning

Considering the possibility of losing mental capacity and registering Lasting Power of Attorneys is usually associated with people getting older, but it can be useful for adults of any age to think about making use of such provisions, in case of unexpected illnesses or accidents for example, that results in a temporary or permanent loss of mental capacity.

Using an LPA is not limited to circumstances where an adult’s mental capacity is reduced. For example, if a person (the donor) has an illness which means they can’t leave the house, has registered an LPA in relation to property and financial affairs, the attorney can carry out financial transactions on their behalf and with their permission.

Although an LPA cannot be used until it has been fully registered with the OPG and confirmation received, they can be registered before the adult loses mental capacity, which means that they could be used immediately if required.

7. Best Interests

See also Best Interests chapter.

The MCA sets out a checklist of things to consider when deciding when making decisions in a person’s best interests. When making best interests decisions, practitioners should:

• not make assumptions about an adult based on age, appearance, condition or behaviour;
• consider all the relevant circumstances;
• consider whether the person has (or will have) mental capacity to make the decision;
• support the person’s participation in any acts or decisions made for them;
• not make decisions about life sustaining treatment which are motivated by a desire to bring about the person’s death;
• consider the person’s expressed wishes and feelings, beliefs and values;
• take into account the views of others with an interest in the person’s welfare, their carers and those appointed to act on their behalf.

8. Excluded Decisions

There are certain decisions which can never be made on behalf of a person who lacks mental capacity. This is because they are either so personal to the individual concerned, or they are governed by other legislation.

8.1 Decisions concerning family relationships

Nothing in the MCA allows a decision to be made on someone else’s behalf in relation to:

• consenting to marriage or a civil partnership;
• consenting to have sexual relations;
• consenting to a decree of divorce on the basis of two years’ separation;
• consenting to the dissolution of a civil partnership;
• consenting to a child being placed for adoption or the making of an adoption order;
• discharging parental responsibility for a child in matters not relating to the child’s property;
• contact with others, including restricting the use of social media, telephone calls and who can visit the adult; or
• giving consent under the Human Fertilisation and Embryology Act 1990.

• media, telephone calls and who can visit the adult.

All these types of decisions should be referred to the Court of Protection if the person is believed to lack mental capacity to make these decisions themselves.

8.2 Mental Health Act matters

Where a person who lacks mental capacity to consent is currently detained and being treated under the Mental Health Act 1983, nothing in the MCA authorises anyone to:

• give the person treatment for mental disorder; or
• consent to them being given treatment for mental disorder.

8.3 Voting rights

Nothing allows a decision on voting – at an election for any public office or at a referendum – to be made on behalf of a person who lacks capacity to vote.

8.4 Unlawful killing or assisting suicide

Nothing in the MCA affects the law relating to murder, manslaughter or assisting suicide.