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We will continue our exploration of the Mental Capacity Act by looking more closely at assessing mental capacity. In this part, we will look at why it is important to assess capacity and the first stage of the test for assessing capacity, known as the “diagnostic” test. In the second part, we will look at the second stage of the test and what you need to show to be protected for your capacity assessment.
What do we mean by mental capacity?
Mental capacity is the ability to make a particular decision decision at the time it needs to be made This means that mental capacity is a question of function, and we will see this when we explore the second stage of the two-stage test for capacity. After all, someone with an impairment or disturbance in the way their mind or brain works may be perfectly capable of making a particular decision at the time it needs to be made.
Mental capacity is not about status. Just because someone has been diagnosed with dementia for example, does not mean she is unable to make a particular decision about something that affects her.
The starting point must always be to assume the person, who is 16 years of age or more, has capacity to make a particular decision at the time it needs to be made. This is the first principle under the Act and is the subject of a separate podcast.
The assumption of capacity means that the only way to displace it is to assess the person’s capacity using the two stage test (we will look at the two stage test in a moment). The burden lies upon you to prove that a person lacks capacity. It is not for a person to prove that she has capacity, which is in keeping with the assumption.
Why is it important to know whether someone has mental capacity?
An adult who has capacity has a legal right to make her own decision about something. This gives her a right to consent, or refuse consent to an act of care or treatment She can also withdraw her consent, having given it previously. A refusal of consent must be respected.
Who should assess capacity?
The assessor will usually be the person who is directly concerned with the individual at the time the decision needs to be made. This will be you if you have the power to make the decision for the person, or to act on their behalf.
What about help and support?
A person may need help and support to maximise her decision making capacity, or to communicate her decision. This is the second principle. The need for help and support does not mean that she lacks capacity to make the decision in question. If you are satisfied that a person is able to make the decision only with your help and support, that is enough. But it is important that she also reaches her decision freely and that you have not inadvertently influenced her towards this decision.
What triggers a capacity assessment?
The Mental Capacity Act Code of Practice says that it is important to carry out an assessment when a person’s capacity is in doubt. This may be the result of the person’s behaviour, pattern of decision making or somebody else saying that they are concerned about the person’s capacity. Whatever the reason, always start by assuming that the person has capacity to make the decision in question.
What is the test for capacity?
There are two stages to deciding this question. The Act says that a person lacks capacity if:
she has an impairment or disturbance that affects the way her mind or brain works; and
the impairment or disturbance means that she is unable to make a particular decision at the time it needs to be made.
Your assessment of person's capacity must therefore be based upon her ability to make a particular decision at the time it needs to be made (sometimes referred to as “the relevant time”). It is not based upon her ability to make decisions in general. After all, a person may have capacity in respect of certain matters but not in relation to other matters. Similarly, a person may have capacity at one time and not at another.
If a person’s capacity fluctuates, consider whether she is likely to regain capacity in time to make the decision. If it is likely that she will, then the decision must be postponed.
How sure do I have to be that a person lacks capacity?
If you conclude a person lacks capacity to make the decision, you need to be able to show that your decision is on “a balance of probabilities”. This means being satisfied that it is more likely than not a person lacks capacity to make the decision in question.
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