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MCA: Assessing capacity

We might all have problems making decisions from time to time, maybe due to illness, tiredness or indecision. But the MCA is designed to go beyond these types of situations. It is designed specifically to empower and protect an individual who may be unable to make a decision because of the way their mind or brain works is affected, for example, by illness or disability, or the effects of drugs or alcohol.

What is mental capacity and when might you need to assess capacity?

Having mental capacity means that a person is able to make their own decisions.

You should always start from the assumption that the person has the capacity to make the decision in question (principle 1).

You should also be able to show that you have made every effort to encourage and support the person to make the decision themselves (principle 2).

You must also remember that if a person makes a decision which you consider eccentric or unwise, this does not necessarily mean that the person lacks the capacity to make the decision (principle 3).

Under the MCA, you are required to make an assessment of capacity before carrying out any care or treatment if you have reasonable belief someone lacks capacity – the more serious the decision, the more formal the assessment of capacity needs to be.

Mental Capacity Act: Making decisions about money

When should capacity be assessed?

You may need to assess capacity where a person is unable to make a particular decision at a particular time because their mind or brain is affected by illness of disability.  Lack of capacity may not be a permanent condition.  Assessments of capacity should be time- and decision-specific. You cannot decide that someone lacks capacity based upon age, appearance, condition or behaviour alone.

The test to assess capacity

The two-stage test

In order to decide whether an individual has the capacity to make a particular decision you must answer two questions:

Stage 1 – Is the person unable to make a particular decision (the functional test)?

Stage 2 – Is the inability to make a decision caused by an impairment of, or disturbance in the functioning of, a person’s mind or brain? This could be due to long-term conditions such as mental illness, dementia, or learning disability, or more temporary states such as confusion, unconsciousness, or the effects of drugs or alcohol (the diagnostic test).

The MCA says that a person is unable to make their own decision if they cannot do one or more of the following four things:

  • Understand information given to them
  • Retain that information long enough to be able to make the decision
  • Weigh up the information available to make the decision
  • Communicate their decision – this could be by talking, using sign language or even simple muscle movements such as blinking an eye or squeezing a hand.

Every effort should be made to find ways of communicating with someone before deciding that they lack capacity to make a decision based solely on their inability to communicate. Also, you will need to involve family, friends, carers or other professionals.

The assessment must be made on the balance of probabilities – is it more likely than not that the person lacks capacity? You should be able to show in your records why you have come to your conclusion that capacity is either present or lacking for the particular decision.

Variations in capacity

The MCA covers all types of decisions, big and small. This may be from the day-to-day, such as what to wear or eat, through to more serious or complex decisions, about, for example, where to live, whether to have surgery or how to manage finances or property.

The MCA applies to situations where someone is unable to make a particular decision at a particular time because of the way their mind or brain is affected. When suffering from depression, an individual may be unable to make a decision, but when recovered they can.

And, because someone lacks capacity to make major decisions, this does not mean they are unable to make minor decisions.  For example, an individual with a learning disability whilst unable to make a decision about where to live, is able to make other smaller decisions, such as what to eat, wear or do each day.

Who should assess capacity?

  • Anyone caring for or supporting a person who may lack capacity could be involved in assessing capacity – follow the two-stage test.
  • The MCA is designed to empower those in health and social care to do capacity assessments themselves, rather than rely on expert testing by psychiatrists or psychologists – good professional training is key.
  • However, in cases involving complex or major decisions you may need to get a professional opinion. This could be a general practitioner (GP) or a specialist (consultant psychiatrist or psychologist).

Record keeping

What and when to record will vary.  As a general rule, there is no need to record assessments of capacity to take day-to-day decisions.  Remember in order to have protection from liability when providing care or treatment, staff must have a reasonable belief that the person they care for lacks capacity to make relevant decisions about their care or treatment (see section 5 (1) MCA).

In these circumstances, it is useful to be able to describe the steps taken and have a written record.

Professionals are subject to higher standards in terms of record keeping and a formal record will be required to be kept, for example in the patient’s clinical notes if a doctor or a healthcare professional is proposing treatment for someone who lacks capacity.