How is Capacity Assessed?

The legal framework setting out how a person's mental capacity is assessed is set out in the Act along with the associated Code of Practice.

Principles contained in the Act establish that a person faced with making a decision should, as a starting point, be presumed to have capacity and that they should be supported, if necessary, to be able to make that decision.

Legal Services - How is Capacity Assessed

The Act also establishes that people have the right to make decisions which might be considered unwise, and that the making of an unwise decision does not necessarily mean that they lack mental capacity.

As set out in the Code of Practice, a person should not be assumed to lack capacity because of their age, appearance, mental health diagnosis or any other medical condition or disability that they may have.

An assessment of whether a person lacks capacity to make a particular decision may be carried out if there is a reasonable belief that they may lack capacity. This reasonable belief might result from the way a person behaves, for example, if their decision-making has become unpredictable or inconsistent, or due to other circumstances, for example, where they already have a diagnosis of a psychiatric illness or a learning difficulty which might cause them to be unable to make a particular decision.

Section 2 of the Act sets out that a person lacks capacity if:

'' 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.''

This means that a person's capacity is decision and time specific, and so any assessment of capacity must be considered on an individual basis. As a result, a person may lack capacity regarding one issue but have capacity in relation to another. Equally, although a person may have been assessed as lacking capacity regarding a particular issue in the past, they may have regained capacity at a later date.

Section 3 of the Act further clarifies the test by confirming that a person is unable to make a decision for him or herself (as referred to in section 2) if they are unable:

  • (a) to understand the information relevant to the decision,
  • (b) to retain that information,
  • (c) to use or weigh that information as part of the process of making the decision, or
  • (d) to communicate his decision (whether by talking, using sign language or any other means).

If a person, when being asked to make a decision, is unable to carry out one of (a) - (d) above because of an impairment of the functioning of their mind or brain, then they will be assessed as lacking capacity to make that decision. A decision would therefore have to be made on their behalf, in their 'best interests'.

Who assesses capacity?

The answer to this question will depend on who needs the decision to be made. For everyday decisions, it will often be family members or carers looking after a person who make an initial assessment; they will need to assess whether a person may be unable to make a particular decision and therefore, whether it may need to be made on their behalf and in their best interests. It is important to note that family members or carers are not expected to be experts in assessing a person's capacity in these circumstances.

For more important or life-changing decisions, like where someone should live or whether they should undergo medical treatment, a more formal assessment of capacity can be carried out by professionals, for example, by a psychiatrist or a psychologist, where there is reasonable belief that a person may lack capacity.

If there is a dispute about whether someone may or may not have capacity to make a particular decision, the issue can be referred to the Court of Protection, the specialist court which considers cases regarding mental capacity issues. The court will require formal evidence of an assessment of capacity before it makes a declaration as to whether someone is able or unable to make a particular decision.

What do local authorities do?

Your local authority may help to get your family member the extra community support they need or it can make decisions on behalf of your family member in consultation with you.

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Julie Cornes - Education Law and Community Care Solicitor - Simpson Millar LLP - London

Julie Cornes
Partner, Court of Protection (Capacity & Deprivation of Liberty)

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