What is a Mental Capacity Assessment?

In a previous post, I introduced the Mental Capacity Act and the fact that some people can’t make some decisions for themselves. In such cases, the Mental Capacity Act and other case law provide frameworks and tests used to assess whether a person has the Mental Capacity to make a particular decision.

The Mental Capacity Act can be used to assess the mental capacity for a wide range of matters from day-to-day decisions (such as what someone is going to wear or what they buy from the shops) to major, life-changing events (such as deciding whether to move to a care home or undergo a surgical procedure).

However, the Mental Capacity Act isn’t the only test used when assessing a person’s mental capacity. This is because some decisions are too personal for someone to make on behalf of another person and they are:

• Decisions concerning family relationships (such as; consenting to marriage or civil partnerships, consenting to have sexual relations, consenting to a decree of divorce on the basis of two years’
  separation, consenting to the dissolution of a civil partnership, consenting to a child being placed for adoption or the making of an
  adoption order, discharging parental responsibility for a child in matters not relating to the child’s property, or giving consent under the Human Fertilisation and Embryology Act 1990)
• Mental health matters
• Voting rights
• Unlawful killing or assisted suicide

Some decisions are governed by other legislation and are also excluded from being made using the Mental Capacity Act. These are:

• Capacity to make a will
• Capacity to make a gift
• Capacity to enter into a contract
• Capacity to litigate (take part in legal cases)
• Capacity to enter into marriage

Unlike the Mental Capacity Act, these tests are only for assessing whether a person lacks the mental capacity to make the decisions themselves. They don’t provide a framework for making best interests decisions.