What is mental capacity?
Mental capacity means the ability to make or communicate specific decisions at the time they need to be made. To have mental capacity you must understand the decision you need to make, why you need to make it, and the likely outcome of your decision.
Some people will be able to make decisions about some things but not others. For example, they may be able to decide what to buy for dinner but be unable to understand and arrange their home insurance. Alternatively, their ability to make decisions may vary from day to day.
Needing more time to understand or communicate does not mean you lack mental capacity. For example, having dementia does not necessarily mean that someone is unable to make any decisions for themselves. Where someone is having difficulty communicating a decision, an attempt should always be made to overcome those difficulties and help the person decide for themselves.
However, if there does come a time when you are unable to make your own decisions, you will have lost mental capacity and someone else will need to make decisions for you.
These could be decisions about:
Finances – paying your mortgage, investing your savings, or buying items you need.
Health and care – what you should eat, or what type of medical treatment you should have.
The Mental Capacity Act 2005
The Mental Capacity Act 2005 is a law that protects vulnerable people over the age of 16 around decision-making. It says that:
Every adult, whatever their disability, has the right to make their own decisions wherever possible.
People should always support a person to make their own decisions if they can. This might mean giving them information in a format that they can understand (for example this might be easy read information for a person with a learning disability) or explaining something in a different way.
But if a decision is too big or complicated for a person to make, even with appropriate information and support, then people supporting them must make a ‘best interests’ decision for them.
The 5 main principles of the Mental Capacity Act
- Everyone is believed to have capacity to make decisions unless it can be proved that they do not.
- A person should be supported to make their own decisions using all practicable steps before it is decided that they are unable to do so.
- A person should not be considered unable to make a decision simply because their decision is considered unwise or eccentric by others. (If capacity is in doubt at this stage and the person has a disorder of the mind, no matter how caused, use the four-point capacity test below).
- Any decision made on behalf of someone who lacks capacity must be made in their best interests.
- Any best interests’ decision must take account of all the circumstances and take the least restrictive course of action available to maintain the person’s basic rights and freedom.
Supporting someone to make a decision
Before deciding that someone lacks the capacity to make a decision, all practical and appropriate steps must be taken to help them make the decision themselves.
The Mental Capacity Act Code of Practice is important guidance on how the law should be applied in particular situations. It includes a summary about how to help someone make a decision in four main principles:
- Provide relevant information
- Does the person have all the relevant information they need to make a particular decision?
- If they have a choice, have they been given information on all the alternatives?
- Communicate in an appropriate way
- Could information be explained or presented in a way that is easier for the person to understand (for example, by using simple language or visual aids)?
- Have different methods of communication been explored if required, including non-verbal communication?
- Could anyone else help with communication (for example, a family member, support worker, interpreter, speech and language therapist or advocate)?
- Make the person feel at ease
- Are there particular times of day when the person’s understanding is better?
- Are there particular locations where they may feel more at ease?
- Could the decision be put off seeing whether the person can make the decision at a later time when circumstances are right for them?
- Support the person
- Can anyone else help or support the person to make choices or express a view?
Making a best interest’s decision
If, after all steps have been taken to support someone to make their own decision, the person is assessed as lacking capacity to make that particular decision, then a ‘best interests’ decision must be made.
The person who makes the ‘best interests’ decision is called the ‘decision maker’. Who the decision maker is will depend on the situation and the type of decision?
- For most day-to-day decisions the ‘decision maker’ is likely to be the person who is supporting the person.
- Where it is a decision about healthcare it will be the relevant health professional.
Whoever is the decision maker, it is important they talk with others involved with the person, and involve the person themselves as much as possible, to get a good understanding and therefore make the best decision they can.
Best interests’ checklist
The Mental Capacity Act sets out a best interest’s checklist, which must be followed when making a best interest’s decision:
- Will the person regain capacity?
- Involve the person.
- Consult all relevant people.
- Consider all the information.
- Do not make any assumptions.
- Consider past, present, and future wishes.
- The very least restrictive option.
The full checklist is in the Mental Capacity Act Code of Practice.
Involve the person you are making a best interest’s decision for
When a best interest’s decision is being made the person must still be involved as much as possible.
Mencap and BILD’s Involve Me resource is about creative ways that can be used to ensure people remain at the heart of decision making, and how their preferences can be captured and used to influence decisions about their lives even if they lack capacity to make the decision.
Independent Mental Capacity Advocate (IMCA)
If a person has no family or friends for the decision-maker to consult with on important decisions like serious medical treatment or changes of accommodation, then an Independent Mental Capacity Advocate must represent the person’s views. They are a legal safeguard for people who lack the capacity to make big decisions.
You can read more here: More on Independent Mental Capacity Advocates