What does mental capacity mean and how is it assessed? 

Mental capacity is a concept that often gets confused with mental health, and vulnerability. However, the term mental capacity is simply referring to a person’s ability to make a specific decision.

The test for mental capacity

The mental capacity test is clearly and helpfully laid out in sections 2 and 3 of the Mental Capacity Act (MCA) 2005. S.2(1) MCA states:

 ‘A person (P) lacks capacity in relation to a matter if at the material time 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.’

 s.3 MCA 2005 provides that a person would be unable to make a decision if they were unable to: 

•  understand information relevant to the decision, which includes the reasonably foreseeable consequences of deciding, or failing to decide, one way or another
• retain that information
• use or weigh that information as part of the process of making that decision, or
• communicate the decision

In considering whether a person has capacity or not, it is important to note that:

• the impairment can be permanent or temporary
• capacity cannot be established merely by reference to a person’s age or appearance
• capacity cannot be established with reference to a particular condition or behaviour
• a person cannot be treated as unable to make a decision merely because they have made an unwise decision

The question of whether a person has mental capacity or not depends on the matter that they are being asked to decide. One of the key things than an assessment is determining what the relevant information is for that decision, and that is one reason why capacity is decision specific, because what a person needs to know to decide what to have for breakfast is very different to what they need to decide  where they are going to live, and so on. Mental capacity can also depend on when they are being asked the question, as it is often the case that a person has better cognitive function at one time of the day than another.

Statutory guidance on how to apply the Mental Capacity Act 2005 can be found in the Code of Practice.

Whether a person is vulnerable or not, or has mental health concerns, can be relevant to the issue of capacity, but they are not the same question.

How is mental capacity assessed? 

A mental capacity assessment is usually a one-on-one meeting and assessment. What is being looked at is the person’s ability to understand the relevant information, to be able to retain that relevant information, to be able to work and use that relevant information, and to communicate their decision.

The role of the assessor is to show the person being assessed at their best, and support them. If there are any issues regarding any stage of the test, then the assessor’s job is to work with the person being assessed to find out why, and what’s causing that, and then if it’s linked to some sort of cognitive difficulty, work out what that is, and explain it.

An important part of any assessment is to ascertain whether there are any barriers to communication, and address them ahead of or during an assessment to enable the person being assessed to understand and communicate to the best of their abilities.  Plain language should be used, and the conversation should gently build on topics, with understanding being regularly checked.

In summary, whilst the test for mental capacity is set out in the Mental Capacity Act 2005, how it is assessed will very much depend on the person being assessed, and the question being addressed. 

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