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July 2017

The Mental Capacity Act in Practice: Part 2 

Introduction 

Despite the Mental Capacity Act 2005 being a major part of UK human rights legislation since 2007 mental capacity assessment and the process of making decisions remain complex and challenging areas of practice for those working in both Children’s Services and Adult Care and Support. 

This briefing is the second part of a series that aims to: 

1. Develop and increase understanding of the requirements of the Mental Capacity Act in regard to assessing capacity and making decisions; and
2. Support practitioners to practice confidently when assessing mental capacity and making decisions. 

Tri.x is also developing a user friendly yet comprehensive online practice resource covering all aspects of the Mental Capacity Act. This will be available later in the year for all customers through the addition of a link during scheduled updates. 

Using this briefing 

The Mental Capacity Act in Practice: Part 1 provided a summary of the statutory principles of the Act. (tri.x Briefing #209: The Mental Capacity Act in Practice: Part 1) 

Part 2 of this briefing series aims to develop and increase understanding by summarising the key requirements of the Act when assessing mental capacity. 

There is a statutory requirement under section 42 of the Act that regard must be given to the Code of Practice when carrying out any function or decision under the Act. This is regardless of the existence of other guidance. 

The Code of Practice for the Mental Capacity Act 2005 can be accessed at https://www.gov.uk/
government/uploads/system/uploads/attachment_data/file/497253/Mental-capacity-act-code-of-practice.pdf. 

When a Mental Capacity Assessment Must be Carried Out 

A mental capacity assessment must be carried out whenever: 

1. There are indicators that any person aged over 16 may not be able to make a particular decision at the time that it needs to be made; and
2. There is a belief that the reason that the person may be unable to make their own decision is because of an impairment of, or a disturbance in the functioning of the mind or brain. 

Need to Know 

Under the Act mental capacity is both ‘decision specific’ and ‘time specific’. This means that: 

1. A person cannot lawfully be deemed or assumed to ‘lack capacity’ generally; and
2. The Mental Capacity Act must be applied each time that a decision needs to be made.  

The Purpose of the Mental Capacity Assessment 

The purpose of the mental capacity assessment is to: 

1. Confirm that the person has an impairment of, or a disturbance in the functioning of the brain or mind; and
2. Where an impairment or disturbance exists, prove on balance whether this prevents them from being able to make the decision required at that particular time. 

The 2 Stages of the Mental Capacity Assessment 

There are 2 clear stages to the mental capacity assessment. Any assessment should begin with stage 1 and only proceed to stage 2 if the first stage is met. 

Stage 1: Does the person have an impairment of, or disturbance in the functioning of the mind or brain? 

Stage 1 is sometimes referred to as the ‘diagnostic’ test of capacity. 

This purpose of this stage in practice is to: 

1. Consider the evidence regarding the presence of an impairment of, or disturbance in the functioning of the mind or brain; and
2. Decide whether such an impairment or disturbance exists.  

Stage 2: Does the impairment or disturbance mean that the person is unable to make the specific decision when they need to? 

Stage 2 is commonly referred to as the ‘functional’ test of capacity.  

Stage 2 of the mental capacity assessment should only be applied when: 

1. There are indicators that the person may not be able to make the decision at the time that it needs to be made; and 
2. Stage 1 of the assessment has concluded that the person has an impairment of, or disturbance in the functioning of the mind or brain.  

Stage 2 of the Mental Capacity Assessment 

Stage 2 of the mental capacity assessment requires the assessor to provide evidence that either supports or refutes a person’s ability to do one or more of the things set out in section 3 of the Mental Capacity Act as necessary to make a decision. These are: 

1. Understand information given to them;
2. Retain that information long enough to be able to make the decision;
3. Weigh up the information available to make the decision; and
4. Communicate their decision.  

Understanding Information 

Under the Mental Capacity Act it is important that information about the decision is provided to the person in the most appropriate way, based on their specific circumstances and needs. 

This could include, but is not limited in any way to: 

1. Verbally through appropriate language;
2. Sign language;
3. Pictures and other visual aids. 

It is not lawful to decide that a person cannot understand information when it has not been given to them in an accessible way.

 Retaining Information 

There is no legal requirement about how long a person must be able to retain information for, only that they must be able to retain it long enough for the decision to be made. 

It is the responsibility of the practitioner assessing to determine how long a person needs to retain information for based on the specific circumstances and nature of the decision to be made. 

Weighing up Information to Make a Decision 

Under the Mental Capacity Act a person is deemed able to weigh up information to make a decision if: 

1. They understand the implications of deciding one way or another (the pros and cons of the different options); and
2. They understand the consequences of not making a decision. 

The Mental Capacity Act only expects the practitioner to assess the person’s ability to understand those implications and consequences that are ‘reasonably foreseeable’.  

Communicating the Decision 

Under the Mental Capacity Act communication of the decision by the person does not mean verbal communication of the decision. Communication can be made through any means appropriate for the person. 

This can include, but is not limited to: 

1. Verbal communication;
2. Communication through sign language;
3. Communication through an interpreter;
4. Communication through gesture. 

It is not lawful to decide that a person cannot communicate a decision because they cannot do so verbally. 

Upholding the Statutory Principles of the Mental Capacity Act 

When carrying out the functional capacity test the assessor has a duty to apply the first 3 statutory principles of the Act at all times, as defined in the table below. 

	Principle	In Practice
1	A person must be assumed to have capacity unless it is established that they lack capacity.	Every person from the age of 16 has a right to make their own decisions if they have the capacity to do so. Practitioners and carers must assume that a person has capacity to make a particular decision at a point in time unless it can be established that they do not.
2	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.	People should be supported to help them make their own decisions. No conclusion should be made that a person lacks capacity to make a decision unless all practicable steps have been taken to try and help them make a decision for themselves.
3	A person is not to be treated as unable to make a decision merely because he makes an unwise decision.	People have the right to make a decision that others would see as ‘unwise’. This does not automatically mean they lack capacity and they should not be treated as such.

By using the principles as a starting position the focus of practice will be in line with the statutory requirements of the Act, in that it will: 

1. Seek to understand the support that a person may need; and
2. Take steps to provide such support; on the basis that;
3. With the right support they will be able to make their own decision. 

If the statutory principles are not applied practice could be unlawful because: 

1. It may begin on the presumption that the person lacks capacity to make the decision; and
2. Focus the assessment on proving this to be so; rather than
3. Taking steps to try to support the person to make their own decision. 

Only after applying the principles, and where there is evidence to confirm the person is not able to make their own decision can they be deemed to lack capacity. 

Reasonable Belief and the Balance of Probability 

The threshold on which a person can be deemed to lack capacity must be either: 

1. Reasonable belief (when a carer is assessing capacity to make an everyday decision about routine care and treatment); or
2. The balance of probability (when the assessment is made by a professional or relates to a specific or complex decision). 

Mental capacity is complex and it can sometimes be difficult to categorically say that a person is unable to make a decision. Often there may be: 

1. Some evidence that suggests a person is unable to make the decision; and
2. Some evidence that suggests they can. 

Making a decision based on the balance of probabilities means weighing up all of the evidence from the assessment. If the evidence is more weighted towards the person being able to make the decision then the outcome of the assessment must be that they have the mental capacity to make their own decision, and vice versa. 

Next time …. 

Part 3 of this briefing series will explore some of the practicable steps that should be taken to apply the 2nd statutory principle when assessing mental capacity. 

 

 

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