Understanding Mental Capacity
The Mental Capacity Act 2005 (MCA) is a legal framework that sets out the conditions in which a person can be judged capable of making their own decisions. It is intended to protect and empower people who are unable to make decisions for themselves as a result of a mental disorder. A person who is unable to make a decision at the time when that decision is being made is said to “lack capacity.” Only persons aged 16 and over are covered by the MCA.
Here we look at the kinds of decisions that the MCA applies to. We then outline the MCA’s five key principles and cover the criteria that are used to judge whether or not a person lacks capacity.
What kinds of decisions are covered by the MCA?
The MCA is typically associated with issues of treatment and care, but it can also apply to a wide range of decisions related to lifestyle, finances, wellbeing, and more. It is intended to cover all the different types of decisions that a person might make in their daily life, from deciding what to eat for dinner to considering whether or not to take out a loan. Its uses and interpretations vary greatly, depending on the specific person and on the specific decision in question.
A person can have the capacity to make some decisions but not others. For example, they might have the capacity to make basic decisions about what to wear each day, but they might lack the capacity to make more complex decisions about their treatment, their finances, or where they live. In medico-legal situations, issues of mental capacity often arise in connection with making a will (known as testamentary capacity) or when a person must be assessed for their capacity to litigate.
A person’s capacity can fluctuate over time. The same person might have capacity at one point but then lose it later on; alternatively, they might lack capacity initially but then regain it later. For example, a person might, at first, lack the capacity to decide whether or not they should live in a care home, but following a course of treatment they might regain the capacity to make that decision.
The MCA provides affordances for all of these different scenarios by way of its five key principles.
The Five Principles of the MCA
A person must be assumed to have capacity, unless it is proven that they do not. As mentioned, this can vary depending on the specific time and situation, and just because a person was found to lack capacity in one scenario, does not mean that they can be assumed to lack capacity in another.
Every practical effort must be made to allow a person to understand and make a decision, before it can be assumed that they lack capacity.
A person cannot be said to lack capacity simply because they make an unwise decision. An unwise decision is generally defined as one that a majority of rational individuals would not choose, knowing the potential consequences of that decision. A classic example, provided by the Social Care Institute for Excellence, is of a person who wants to spend half their monthly earnings on lottery tickets. You may think this is unwise, but if a person understands the potential consequences (namely, that they might lose all their money), you can’t prevent them from making that decision.
If someone makes a decision or does something on behalf of someone who lacks capacity, then it must be in that person’s best interests. Ascertaining what is meant by “best interests” is complicated and case specific, but in general terms it means that any decision taken must not cause harm to the person and must as far as possible align with that person’s wishes, feelings, values and beliefs.
Any act or decision made on behalf of someone who lacks capacity must be done in a way that is minimally restrictive of the person’s rights and freedoms. This is tricky to manage and often involves consultation among legal and healthcare professionals. As an example, we could consider a person who lacks the mental capacity to decide whether or not to perform a weekly grocery shop. If they do not understand the consequences of not shopping for food (starvation, malnourishment, death), then they lack the capacity to make a decision about shopping. Nevertheless, in order to preserve as much of their freedom as possible, that person could still be given the choice about what food they would like to eat each week.
Negotiating the practical realities of these principles is the task of all persons identified by the MCA Code of Practice. These include attorneys acting under a Lasting Power of Attorney (LPA), deputies appointed by the Court of Protection, anybody acting as an Independent Mental Capacity Advocate (IMCA), anybody conducting research in relation to the MCA, and anybody working with or caring for someone who lacks capacity. Typical people or professionals included in this latter category are healthcare staff, social workers, police officers, ambulance drivers, care assistants, care workers, and more.
When is a person unable to make a decision?
The MCA sets out a “two-stage test of capacity” for determining whether or not a person lacks the capacity to make a decision.
Stage One
First, it must be ascertained whether a person has “an impairment of, or a disturbance in the functioning of, their mind or brain.” This impairment or disturbance can result from any number of long- or short-term causes. Examples of disorders that might affect capacity include:
dementia
significant learning disabilities
certain forms of mental illness
brain damage
concussion following a head injury
delirium
diminished consciousness as a result of a physical or mental condition, or from drug or alcohol use
Note, however, that just because a person has one of these conditions does not mean that they will necessarily lack the capacity to make a specific decision.
Stage Two
If a person is deemed to have a mental disorder, then the second stage of the assessment involves determining whether that disorder prevents them from understanding and making a decision at the specific time at which they are required to make it. According to the MCA, a person can be deemed to lack the capacity to make a decision if they meet any of the following criteria:
They are unable to understand the information relevant to the decision. In other words, they can’t understand the reasonably foreseeable consequences of either deciding one way or the other, or of not deciding at all.
They are unable to retain the information relevant to the decision. The MCA does not stipulate for how long a person has to be able to retain the information in order to have capacity, but it does state that a person won’t be deemed to lack capacity just because they can only retain the information for a short period of time.
They are unable to use the information about the decision to weigh up its consequences. In other words, a person must be able to make a logical inference about their decision, based on what they know.
They are unable to communicate their decision through some means such as talking, writing, sign language, or any other form of communication.
Summary
The MCA provides a framework for establishing whether or not a person has the capacity to make a decision. It also provides protections for people deemed incapable of making decisions. It covers a broad range of decisions and makes allowances for the fact that people’s mental capacity may be different in different times and places. It assumes that people have capacity unless proven otherwise and ensures that steps are taken to provide people with the opportunity to make a decision if possible. It also stipulates that people cannot be assumed to lack capacity just because they make an unwise decision. It makes provisions for people to act in the best interests and preserve the freedoms of those who lack capacity. Finally, it defines the criteria for assessing whether or not a person is capable of understanding a particular decision.
This post is provided for general information purposes and is not intended to cover every aspect of the topics with which it deals. It does not constitute medical, legal, or professional advice, nor is it necessarily an endorsement of the views of Professor Elliott, the U.K. Centre for Medico-Legal Studies, its employees, or its affiliates. Though we aim to ensure that all information is accurate at the time of posting, we make no representations, warranties or guarantees, whether express or implied, that the content in the post is complete or up to date.