Assessing Mental Capacity

Almost every aspect of life requires a decision to be made, whether subconsciously, or otherwise.

Whether an individual has mental capacity is a key consideration for all legal advisors.

To take instructions from a client, a practitioner must be satisfied that that individual has mental capacity, i.e. that they are able to make a decision.  The Mental Capacity Act 2005 (MCA) details that a person lacks capacity if, ‘he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain’.

When assessing mental capacity, the law details five principles that underpin the concept. These are as follows:

1. An individual must be assumed to have mental capacity
2. An individual is not to be treated as unable to make a decision unless this is proven to be the case
3. An unwise decision does not evidence lack of mental capacity
4. An act done under the MCA on behalf of an individual must be in their best interests
5. Before a decision is made on behalf of an individual, it must be assessed whether the outcome can be achieved in a less restrictive way

But how does a practitioner assess mental capacity in a practical sense?

Generally, if a practitioner has any doubts as to an individual’s mental capacity, for whatever reason, after explaining the matter and options/ consequences to the individual, they must ask themselves the following questions:

1. Can the individual understand the decision that needs to be made and why this decision needs to be made?
2. Can the individual retain, use, and weigh up the relevant information to guide their decision-making process?
3. Can the individual communicate their decision to others?

If the answer to all three of these questions is ‘yes’ then the individual is considered to have mental capacity. If ‘no’ is answered to any of these questions, the practitioner must determine whether they have done everything possible to assist the individual to understand and make their decision.

If the practitioner has already done everything in their power to assist the individual with this, they must then determine whether the individual has an impairment or disturbance to the functioning of their mind or brain. If the answer to this is ‘yes’, and it is this impairment or disturbance that means that the individual is unable to make a decision, the individual will be deemed not to have capacity to make decisions.

If the practitioner has any doubts, they will advise that a capacity assessment be undertaken by a medical practitioner and may not proceed with instructions until the assessment has concluded.

As discussed, determining capacity is an everyday consideration for legal practitioners and is a key part of taking instructions from a client.

These safeguards are pivotal and ultimately exist to ensure the client’s best interests are protected.

To contact a member of our Private Client team, email info@bussmurton.co.uk or call 01892 510 222.