Mental Capacity – Part 1

Guest Blog_ Mental capcity

This article is the first of two on mental capacity. This article considers what mental capacity is and the key principles that underpin it. The second article will follow next month and will look at how mental capacity is assessed and decision making.

What is mental capacity?

Mental capacity is the ability to make decisions for yourself.

The Mental Capacity Act (MCA) 2005 is a law in England and Wales designed to protect and empower people who may lack the mental capacity to make their own decisions. The MCA applies to people aged 16 or over. The Act sets out who can make decisions, in which situations and how this should be done.

There is a Code of Practice (the Code) which provides additional information and guidance about how the MCA works in practice (you can view a copy of the Code online – it’s also possible to order a paper copy).

Certain categories of people, including a Deputy appointed by the Court of Protection or an Attorney under a Lasting Power of Attorney, have a legal duty to have regard to the Code when working with and or caring for people who may lack the capacity to make their own decisions (a consultation on the Code is currently underway).

Examples of people who may lack capacity include those with:

  • A stroke or brain injury
  • A mental health illness
  • Dementia.

Capacity is decision and time specific. Some people may lack capacity to make some decisions for themselves, but will have capacity to make other decisions. This is something I regularly come across as a Court of Protection solicitor – I have clients who can manage smaller sums of money for example £100 per week to buy their food shopping and other small items of personal expenditure but they are unable to manage their large personal injury settlement.

A person may lack capacity to make a decision now, but they may gain or regain capacity in the future. Sometimes a person’s capacity to make a decision can be impaired due to illness or a medical condition. The influence of drugs and alcohol could also be a factor. I have known clients who have initially lacked capacity to make decisions about their own property and finances following a brain injury but who have then regained capacity to make those decisions following intensive rehabilitation and appropriate support. 

The MCA is underpinned by five key principles:

  1. Every adult has the right to make decisions for themselves. It must be assumed that they are able to make their own decisions unless it has been shown otherwise.
  • Every adult has the right to be supported to make their own decisions. All reasonable help and support should be given to assist a person to make their own decisions and communicate those decisions before it can be assumed that they have lost capacity.
  • Every adult has the right to make decisions that may appear unwise or eccentric.
  • If a person lacks capacity, any decisions taken on their behalf must be in their best interests.
  • If a person lacks capacity, any decisions taken on their behalf must be the option least restrictive to their rights and freedoms.

Principles 1-3 support the decision-making process before or at the point of determining whether someone lacks capacity. Principles 4-5 support the decision-making process once it has been decided that a person lacks capacity.

How can we help?

Our specialist Court of Protection team has a wealth of experience. If you have any questions or queries, then please contact the writer Charlene Hughes by email at Charlene.Hughes@freeths.co.uk

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