August 2019: This chapter has been amended to add a link to the latest version of a Brief Guide to carrying out Capacity Assessments, published by 39 Essex Chambers and Decision-making and Mental Capacity published by NICE, as above.
The Mental Capacity Act 2005 (MCA) was enacted in order to empower people with a mental impairment to make decisions for themselves wherever possible and to protect those who lack capacity by providing a flexible framework that places people at the heart of decision making. It ensures that people participate as much as possible in decisions made on their behalf, and that those decisions are made in their best interest. Case law has established two types of capacity – the functional capacity to make a particular decision and executive capacity which is the ability to carry out the decision. Therefore, someone may have the capacity to decide on a particular course of action but need someone else to carry it out on their behalf. When we assess capacity, we are assessing someone’s capacity to make a decision; a need for support does not equate to a lack of capacity.
2. Five Key Principles of the Mental Capacity Act 2005
The MCA applies in England and Wales and has five key principles:
- Every adult has the right to make his or her own decisions and must be presumed to have the capacity to do so unless it can be proven otherwise;
- A person must be given all practicable help to support their decision making;
- A person should not be regarded as lacking capacity if they make an unwise decision;
- Any decision made on behalf of a person who does lack capacity, or any actions taken in respect of them must be demonstrably in their best interest;
- Any decision made or action taken on behalf of a person who lacks capacity must be the least restrictive of their basic rights and freedoms.
Compliance with these principles must be demonstrated at all times. If there is evidence to suggest that someone may lack the mental capacity to make a particular decision or to carry it out, a formal assessment of their capacity must be made and recorded, together with evidence to support any finding. The very act of conducting a capacity assessment is not neutral; and the assessment process itself can be seen as intrusive. It is an interference with someone’s right to respect for private life under Article 8 of the European Convention on Human Rights. So, there must always be grounds for conducting an assessment. Similarly, there must always be justification for a decision not to assess if there appears to be a reason to believe that someone may lack capacity. When assessing the capacity of someone, it is vital to remember that the assessment is time and decision specific. There can be no generalised judgement that a person simply lacks capacity. A person may be quite capable of making some decisions but not others or they may be able to make clear, lucid decisions at some times of day but not others. All practicable help must be given to support a person to decide and when carrying out an assessment, it must be borne in mind that a person may have the capacity to make overarching decisions while lacking the capacity to carry out the practical implementation of those decisions.
3. Two Step Test
If all help has been given and the person still appears to lack the capacity to make the decision, an assessment of their capacity to make that particular decision should be made. The Code of Practice which accompanies the MCA outlines a two stage test which is:
- does the person have an impairment of the mind or brain, or is there some disturbance affecting the way their mind works? This may be temporary or permanent;
- if so, does that impairment or disturbance mean the person is unable to make the decision in question at the time it needs to be made?
Case law has established that there is actually a third part to this test which is whether the person’s inability to make a decision is because of the identified impairment or disturbance. This is called the causative nexus and there must be a clear link between the impairment or disturbance and the inability to make the decision. It is not enough that the impairment or disturbance impairs the person’s ability to make a particular decision; it must render them unable to do so.
There will be situations where it is not easy to identify whether someone is unable to make a decision because of an impairment, because of the influence of a third party or a combination of the two. If it is believed that a third party is coercing someone into making a choice which they might not otherwise make, legal advice may be needed. In some cases, it would not be appropriate to go to the Court of Protection but to apply to the High Court for declarations and orders under its inherent jurisdiction.
It is also important to consider that common strategies for dealing with unpalatable dilemmas – for example indecision, avoidance or vacillation – are not to be confused with incapacity. We should not ask more of people whose capacity is questioned than of those whose capacity is undoubted.
If the answer to both questions is yes, and a clear causal link can be shown between the impairment or disturbance and the perceived inability to make the decision, then an assessment of capacity must be made. The decision to assess capacity must be recorded, together with any evidence to support the conclusion and a rationale for the decision.
4. Assessment of Capacity: Four Questions
The assessment of someone’s capacity to make or carry out a decision should be made by the person who needs that decision. However, there will be times when a decision is needed by someone who does not have the knowledge or skills necessary to assess capacity and in those cases, a third party may be asked to assess. The final decision about whether someone has capacity still rests with the person who requires the decision. They may be guided by information provided by the assessor, but the final decision cannot be delegated. The assessment consists of four questions, which are:
- Does the person understand the relevant information? It is not necessary for the person to understand every element of what is being explained to them. What is important is that they can understand the salient points; the information relevant to the decision. The level of understanding must not be set unreasonably high.
- Can the person retain the relevant information? The key issue is whether the person can retain enough information for a sufficient time to make the decision. The Act specifies at s3(3) that ‘the fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.’
- Can the person use or weigh the information relevant to this decision? This part of the test has been described as ‘the capacity actually to engage in the decision making process itself and to be able to see the various aspects of the argument and to relate the one to the other.’ It is particularly important not to equate an unwise decision with the inability to make one. The person may not agree with the advice of professionals but that does not mean they cannot make the decision. Further, if the person is able to use and weigh the information, the weight to be attached to it in the decision making process is a matter for that person. In some cases, it may be difficult to identify whether someone is using a particular piece of information but simply giving it no weight or failing to use that information at all but it is important to tease this out through conversation. For example, someone refusing medication because they don’t really care whether the condition is alleviated may mean they are simply not giving weight to this information. Refusing medication because they don’t believe they have a condition may be failing to use the information at all. Another are of difficulty is where someone appears to be making a decision which they do not have the ability to carry out. A key question here is whether they are aware of their own deficits. In other words, whether they are able to use or weigh (or understand) the fact that there is a mismatch between their ability to form preferences and their understanding of what will be necessary to carry them out.
- Can the person communicate their decision in any way?
If the answer to any of these questions is no, then the person must be deemed to lack mental capacity in relation to that particular decision. When assessing capacity, it must be established whether someone lacks all capacity in relation to the matter at hand or whether there are some decisions they can make. It must also be established whether they can make the decision itself, but lack the capacity to carry it out. For example, someone entering residential care may have the capacity to decide to rent out their house rather than sell it, but lack the capacity to engage with letting agents and property managers. In this case, they would demonstrate the capacity to consider the pros and cons of selling or letting and decide what they want to do, but still need someone to act on their behalf to execute the decision. Clear and detailed evidence must be recorded to support the conclusion that someone lacks capacity.
Capacity can only be assessed using the sets of questions above. Assessments should never be made based on a person’s age, appearance, behaviour or assumptions about the effects of their condition.
5. Recording assessments
A good assessment must include the following considerations:
- it is clear about the capacity decision being assessed;
- evidence that all relevant and realistic information has been provided;
- it will identify the salient and relevant details the person needs to comprehend and understand (setting aside the peripheral and minor details);
- it will not be paternalistic or overprotective;
- it will demonstrate the efforts taken to promote the person’s ability to decide;
- it will evidence each element of the assessment, that is:
a) what the impairment or disturbance is and whether it is temporary or permanent;
b) how the inability to decide has been caused by the impairment or disturbance as opposed to something else;
c) why the assessor believes the person could not understand or retain or use/weigh the information relevant to the decision or communicate the decision despite the assistance given;
- it will show why this is an incapacitated decision as opposed to an unwise one;
- it will be contemporaneous with verbatim notes of the key questions and answers wherever possible;
- it will not contain opinions which are not directly supported by factual evidence;
- it will be proportionate.
6. Fluctuating Capacity
It is important to recognise that there are two types of fluctuating capacity:
- a person may have genuinely fluctuating capacity such as someone with a dementia who has good days and bad days, or is more alert in the morning than the evening, or someone who has a bi-polar disorder whose condition may improve and worsen from time to time.
- a person may have a temporary impairment, such as someone suffering from delirium during a severe infection
If the condition is likely to improve and it is possible to delay the decision until such an improvement has taken place, then this should be done. If it genuinely cannot wait, then as few irreversible steps as possible should be taken.
If the decision is not a one-off decision, but will require repeated decisions over time (such as the management of property and affairs) then legal advice will be needed to ensure a good balance is struck between empowering the person to retain as much decision making and control as possible, acting in their best interest and protecting their vital interests.
7. Next Steps
If a lack of capacity is established, enquiries must be made as to whether anyone holds a valid Power of Attorney. If no such Power exists, consideration must be given to whether the person would requires decisions to be made on their behalf through the Best Interest Decision Making Process, would benefit from the services of an appointee (for the management of DWP benefits and day to day expenses) or needs a deputy appointed by the Court of Protection.