Thinking about Mental Capacity – What it means

Assessing capacity is ‘decision specific’; someone might have the capacity to make some decisions but lack the capacity to make others.

In relation to the relevant decision, can the person:

1. UNDERSTAND the decision
2. RETAIN the information, for long enough to:
3. WEIGH UP the issues/risk
4. COMMUNICATE their decision

If the answer is YES to all four, the person has capacity.

Some principles of the Act include:

• An assessment must always start from an assumption that the person has capacity.
• People have the right to make what others may consider to be eccentric or unwise decisions.
• All efforts should be made to give someone the best chance to show they have capacity and to support them to make a decision for themselves if they can.
• Before making a ‘Best Interest’ decision on another person’s behalf, there must be evidenced, reasonable belief that the person cannot make that particular decision for themselves.
• Fluctuating capacity must also be considered; is the person is likely to regain capacity and if so, can the decision be delayed?
  • If, for example the person is unconscious, a paramedic may decide medical treatment cannot be delayed.
  • if a decision is less urgent, it could possibly be delayed until the person regains their capacity, or until all practical steps have been taken to confirm whether they have capacity. This might mean, for example,
    • considering what time of day the person is at their best
    • treating an acute infection that might be having an impact
    • involving another person who knows them well, or a relevant specialist, for example a speech and language therapist to assist the person to communicate, if speech is a difficulty.

Before a person loses capacity, they can legally appoint someone else as their Power of Attorney (PoA) This delegates authority to this person to make decisions on their behalf.

If the person has already lost capacity, an application can still be made, but the process is different.

If you are considering this, it may help to get legal advice.

There are two kinds of PoA which cover decisions relating to:

• money and finances
• personal welfare, which might include decisions about medical treatment, care or accommodation

Decisions or actions relating to finances can be delegated to a PoA while a person still has capacity.

Decisions relating to personal welfare can only be taken by someone else after it has been confirmed that the person no longer has capacity. Before making a decision on their behalf, this also needs to be registered with the office of the public guardian.

If someone agrees to be a PoA, they must understand and abide by the legal obligations of this role.

This includes understanding ‘deprivation of liberty safeguards’

Any person making a decision on behalf of someone else who lacks capacity is called ‘the decision maker’.

There are certain decisions when a professional may be the ‘decision maker’, even if there is a PoA.

Any decision maker must ensure they are acting in the person’s best interests and also consider:

• What is the least restrictive option?
• What is the person is likely to have chosen for themselves?

To help make an informed ‘Best Interest decision’ the decision maker must consider the views and knowledge of relevant people. This might include:

• a family member or friend, who knows the person well,
• a specialist, possibly a health or social care professional, depending on the decision being considered.

Devon County Council has very clear procedures for all staff who are completing Mental Capacity Act assessments.

All information gathering and best interest decisions must be clearly recorded.

www.devon.gov.uk/care-and-health/adults/mental-capacity/mental-capacity-act-the-process-for-professionals/

If a professional is involved, the process should be explained to you at each stage, and the outcomes should be clearly shared with everyone involved.

The Mental Capacity Act (MCA) Code of Practice helps to clarify how to apply this law:

https://www.gov.uk/government/publications/mental-capacity-act-code-of-practice