Mental Capacity Act

Assessing mental capacity

We are experts in organising capacity assessments and identifying when assessments are needed.

The more serious the decision the more formal the assessment for mental capacity should be. Assessment is about a particular decision at a particular time and not a range of decisions. If someone cannot make complex decisions they may be able to make simple decisions. Assessment cannot be based on age, appearance, condition or behaviour alone and it is often appropriate to consult family, friend or carers for their input and for information about the individual’s decision making. Information about decisions made based on a lack of understanding or inability to weigh up the information can form part of a capacity assessment.

We have been involved in capacity assessments for the following situations:

Anything done for a person lacking capacity must be done in their best interests and should be the least restrictive of their basic rights and freedoms. 

We can assist with the following:

  • Establishing whether someone lacks capacity
  • Advising on what to do if there is a lack of capacity
  • Advising on what is likely to be in a person’s best interests if they lack capacity

The Mental Capacity Act 2005 provides a framework for dealing with all mental capacity issues.

  • Note Mental Capacity Act, not Mental Incapacity Act, so there is a presumption that everyone has capacity
    Based on existing best practice and law
  • Empowers people to make their own decisions wherever possible
  • Supported by a comprehensive Code of Practice which is divided into chapters:
    • Chapter 2 – five statutory principles behind the Act.
    • Chapter 3 – how the Act makes sure people are given the right help and support to make their own decisions.
    • Chapter 4 – defines ‘a person who lacks capacity to make a decision’ and sets out a single clear test for assessing capacity.
    • Chapter 5 – defines “acting in the best interests” of someone lacking capacity, and gives a checklist.
    • Chapter 6 – how the Act protects people providing care or treatment for someone who lacks capacity.

A person lacks capacity if he or she cannot do one or more of the following as a result of impairment of functioning of the mind:

  • Understand information
  • Retain information long enough to make the decision
  • Weigh up information
  • Communicate decision (includes non verbal communication) – this criteria alone not usually enough to show incapacity.

A person can have capacity regarding one decision and not another and can regain capacity for a similar decision in the future.

If you would like further information please contact us on 023 9238 8021 or fill in the enquiry form.

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