When Should a Capacity Assessment be Completed?

A Mental Capacity Assessment or Capacity Test should only be completed where there is reasonable belief that, the person in question, lacks the mental capacity to make a decision in relation to a particular matter. It is important that those assessing mental capacity (it could be a family member, care provider or health or social care professional) do not take a blanket approach and assess mental capacity, “just to be safe”, or “just in case the person lacks capacity”.

To take such an approach ignores one of the five principles of mental capacity. The opening section of the Mental Capacity Act (2005) states:

• A person must be assumed to have capacity unless it is established that he lacks capacity.
• A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
• A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
• An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.
• Before the act is done, or the decision is made, regard must be given to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.

If a person’s mental capacity is assessed without their being reasonable belief that they lack capacity to make that decision, assuming that they do have capacity has been replaced with, assuming they probably do not have capacity. Why else would their capacity be being assessed?

Of course, it is important to ensure that those who do lack capacity to make a particular decision are protected from decisions that might cause them harm, because they cannot make the decision themselves.  The presumption of capacity does not go so far as to provide a defence for those who do not assess capacity when they should.

When should mental capacity be assessed?

Those assessing mental capacity should exercise their judgement to determine whether a Mental Capacity Assessment should be completed. Some questions that might guide you include:

• Is the person clearly struggling to make the decision?
• Has the person had difficulty making this or similar decisions in the past?
• Is the person’s cognitive impairment severe?

Do not forget that for a person to lack capacity, there has to be an impairment of the mind or brain that prevents the person from making that particular decision. However, the decision to assess a person’s capacity,  or a determination that they lack capacity, should never be based upon a diagnosis alone.

• Has the person made several decisions relating to this matter that you think are unwise?

Do not forget another principle of mental capacity – A person is not to be treated as unable to make a decision merely because he made an unwise decision.  However, repeated unwise decisions may cause questions about the person’s mental capacity to be asked.

As you can see, it is a fine balance that needs to be struck between respecting people’s rights to make their own decisions (however unwise we might think they are) and protecting them from harm and being left to make decisions when they cannot.

If you would like to know more about mental capacity, please ask. You can find us on Twitter or LinkedIn @SimplyISW, or hit the WhatsApp button on each page of our website to chat.