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Health and wellbeing

Mental capacity

The Mental Capacity Act (2005)

  • Promotes an individual’s right to make decisions for themselves.
  • Allows individuals to make some advanced decisions, and/or to nominate someone to make decisions on their behalf should they later lose capacity.
  • Requires that any decision made on behalf of an individual who is unable to make it themselves is made in their best interests and is the least restrictive way of meeting the need.
  • Requires that any decision that restricts a person’s rights or freedom of action is necessary to prevent harm to them and is a proportionate response to the likelihood and seriousness of that harm.

The Mental Capacity Act applies to any person aged 16 or over, who has an impairment of, or disturbance in the functioning of, the mind or brain that affects their ability to make a decision. The Act applies to all types of decisions – everyday matters or life-changing events. The impairment, or disturbance, could be permanent (for example, a person who has a learning disability or dementia), or temporary (for example, a person who is under the influence of alcohol or drugs, or who has an infection), or it could fluctuate (for example, a person who is unable to make a decision when experiencing high levels of anxiety).

Any person working with, or caring for, an adult who may lack the mental capacity to make a specific decision must comply with the Act. The underlying principles of the Act require that we start with the assumption that the person has the mental capacity to make the relevant decision themselves, and that we take all practical steps to support them to do so before deciding that they cannot make the decision. The Act also acknowledges that every person is different and that if a person makes a decision that another person thinks unwise, this does not necessarily mean that they lack capacity. However, it is imperative that these principles do not deter us from assessing, whenever there is doubt or concern, whether someone does actually have the mental capacity to make the decision for themselves.

Safeguarding Adults and the Mental Capacity Act

The Local Government Association (LGA) published (in July 2024) a detailed analysis of 229 Safeguarding Adults Reviews (SARs). SARs are undertaken when an adult has suffered serious harm or has died as a result of abuse or neglect and there are concerns about the way agencies worked together to protect the adult. The analysis noted that in 58% of cases a person’s mental capacity had either not been assessed or had been poorly addressed. The report highlighted that many practitioners misinterpret the principles of the Act and continue to assume that a person has mental capacity and that they are making ‘lifestyle choices’ – even when that person is placing themselves at serious risk of harm, or death.

It is vital that practitioners pay close attention to mental capacity, carrying out capacity assessments where indicated, particularly where an individual consistently disregards high levels of risk to themselves or others…

The Mental Capacity Act sets out a two-stage test for establishing whether a person has, or does not have, the mental capacity to make the decision in question.

Stage 1: Having the mental capacity to make a decision means:

1.    Understanding the relevant information:

  • What the decision is and why it needs to be made
  • What options are available
  • The likely implications of choosing one option over another, or of making no decision at all.

2.    Retaining all of this information long enough to make the decision.

3.    Being able to use, or weigh, all of this information – at the time the decision needs to be made.

4.    Being able to communicate the decision (by any means).

The third part of this test is highlighted in the LGA analysis of SARs as an area where practitioners have significant difficulty in assessing mental capacity. The analysis notes that practitioners frequently fail to consider the impact of trauma, substance abuse, brain damage and impulse control on a person’s ability to make the decision – at the time it needs to be made. The analysis identifies that there is often an over-reliance on a conversation between the practitioner and the adult, without consideration of other information that may be, or may become, available to the practitioner.

An individual’s articulate, verbal presentation may give no cause to question capacity, yet their inability to follow through on stated decisions demonstrates potential loss of executive function, potentially making it difficult for them to follow through on decisions about safety or follow advice given about handling risky situations.’

Therefore, it is essential that practitioners continue to monitor, following a finding of mental capacity, that a person has been able to implement / carry out the plan of action which they have decided upon. If they have not, the practitioner must explore with them the reasons for this.

Stage 2: If the person is unable to understand, retain, or use or weigh the relevant information, or if the person is unable to communicate their decision, the practitioner must establish whether the reason they are unable to do so is because of the impairment, or disturbance, in the functioning of their mind or brain – the ‘causative nexus’. If this is the case, the person lacks the mental capacity to make the decision in question and the practitioner must make the decision, in their best interests. However, if the person is unable to make the decision for some other reason (for example, due to undue influence – coercion or control – from others), the practitioner should seek legal advice with regard to a possible application to the High Court to make the decision.

Making a decision for someone who is lacks the mental capacity to make it themselves.

When a person is found to lack mental capacity to make a specific decision because  of the impairment in the functioning of their mind or brain, a decision should be made, in their best interests, about how to address any risk. The Mental Capacity Act sets out a checklist of things to be considered, and the steps to be taken, when making a decision on behalf of someone else. This includes identifying all of the relevant circumstances, including the options available to the person, involving the person as much as possible in the decision-making process and consulting with those who are interested in the person’s welfare, before reaching a conclusion as to the most appropriate course of action. Any decision made that restricts a person’s rights or freedom of action must be necessary to prevent harm to them, proportionate to the likelihood and seriousness of that harm, and the least restrictive way of preventing that harm.

Video resources
This 18 minute video gives an overview of the Mental Capacity Act and includes the perspectives of those who have been impacted by it, see here

In this 14 minute video, Keith explains how he was supported to make decisions around his hoarding and the positive impact it has had on his life, see here

The Mental Capacity Act is accompanied by a Code of Practice which explains how to apply the Act to practical examples, see here

Webinar resources
Mental capacity fundamentals, see here

Best Interests fundamentals, see here

The inherent jurisdiction of the high court, see here

The Mental Capacity Act and money, see here

The concept of lifestyle choice, see here

Other resources
TOOLkit, see here

How to use legal powers to safeguard highly vulnerable dependent drinkers, see here

Mental Capacity, Self-Neglect, and Adult Safeguarding Practices: Evidence Synthesis and Agenda for Change, see here

Making Safeguarding Personal in self-neglect workbook, see here

Second national analysis of Safeguarding Adult Reviews: April 2019 – March 2023, see here


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