Can a person refuse to have a mental capacity assessment?

Supporting and enabling personal autonomy and decision making is a fundamental element of the Mental Capacity Act 2005. Even when a person is deemed to lack mental capacity to make a particular decision, and a best interests decision must be made, the person’s wishes and feelings are at the front and center of any best interests decision made about them.

The issue of mental capacity is so critical to many other elements of a person’s life, and has a direct impact on how issues such as care planning and medical and financial decision making is managed, however, a mental capacity assessment is a deeply personal event, and the question of whether a person can in fact refuse to engage in a mental capacity assessment is often raised.

The bottom line is that everyone has the right to say no. A person cannot be forced to engage with a mental capacity assessment. However, this refusal is very unlikely to be the end of the story, due to the importance of a decision being made about mental capacity.

Therefore, when a person refuses to engage in a mental capacity assessment, the first question that we should be asking is why. Is it the person being proposed as the assessor, the location, the questions being asked, or just the very concept of the assessment that is causing the concern? Often by altering a few of these factors, an assessment may be able to proceed.

However, when a person refuses an assessment, it is often because they are fearful of the outcome. They don’t want to lose control or for things to change. However, a decision about a person’s mental capacity can be made without a formal assessment. The Court or an assessor can look at third party evidence, how they’ve been behaving, and look at medical and care records.

The question being asked is whether, on the balance of probabilities, a person lacks capacity with regard to that specific question, and whilst the preference is always to see someone to assess them, the absence of an assessment doesn’t mean that a conclusion cannot be reached.

How long does a mental capacity assessment take?

If just one question is being assessed, an assessment could take between 40 minutes to an hour and a half, depending on the individual. If the person has significant communication issues then this may result in the assessment taking slightly longer.

However, if there are a number of questions to be addressed, the time frame will be longer, and will depend on the individual’s needs. If an assessment can be spaced out over a day, and regular breaks taken, quite a few issues can be addressed in one visit. However, assessments can be tiring and sitting still for a long time can have a negative impact on a person’s ability to focus.

Therefore, the assessor will need to be guided by the person being assessed, and it may be that a few shorter visits help support and enable the person being assessed more than one longer visit.  An assessment should always take place in a location and at a time that maximizes the mental capacity of the person being assessed.

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