Assessing lack of capacity

An individual’s capacity must be assessed specifically in terms of their capacity to make a particular decision at the time it needs to be made.

This means that a person may lack capacity to make a decision about one issue but not about others. Care must be taken not to judge an individual’s capacity merely by reference to their age, appearance or medical condition.

Supporting the person to make the decision for themselves

It is important to take all possible steps to try to help people make a decision for themselves before deciding that someone lacks capacity to make a particular decision.

In supporting someone to make the decision themselves it is important to provide all necessary relevant information. The Code of Practice specifically sets out that in relation to medical treatment the doctor must explain the purpose and effect of the course of treatment and the likely consequences of accepting or refusing treatment. The Code of Practice sets out guidance on supporting a person to make the decision themselves.

Two-stage test of capacity

Any practitioner assessing someone’s capacity to make a decision for themselves for the purposes of the Act should use the two-stage test of capacity.

• Does the person have an impairment of the mind or brain, or is there some sort of disturbance affecting the way their mind or brain works?
• If so, does that impairment mean that the person is unable to make the decision in question at the time it needs to be made?

Assessing the ability to make the decision

A person is unable to make a decision for himself if s/he is unable:

• To understand the information relevant to the decision;
• To retain that information;
• To use or weigh that information as part of the process of making the decision; or
• To communicate his decision (whether by talking, using sign language or any other means).

The person must be able to hold the information in their mind long enough to use it to make an effective decision. However, people who can only retain information for a short while must not automatically be assumed to lack the capacity to decide.

In any proceedings under the Act any question as to whether a person lacks capacity must be decided on the balance of probabilities.

Best interests

If a person has been assessed as lacking, or is reasonably believed to lack, capacity to make the decision in question or to give consent it is then necessary to weigh up what is in the person’s best interests. An act done or a decision made for or on behalf of a person who lacks capacity must be in that person’s best interests. The Act requires people to take certain steps to help them assess whether a particular act or decision is in a person’s best interests.

A person trying to work out the best interests of a person who lacks capacity to make a particular decision should:

Encourage participation

Do whatever is possible to permit and encourage the person to take part, or to improve their ability to take part, in making the decision.

Identify all relevant circumstances

• Try to identify all the things that the person who lacks capacity would take into account if they were making the decision or acting for themselves
• Try to find out the views of the person who lacks capacity, including:
  • ƒThe person’s past and present wishes and feelings – these may have been expressed verbally, in writing or through behaviour or habits.
  • Any beliefs and values (e.g. religious, cultural, moral or political) that would be likely to influence the decision in question.
  • Any other factors the person themselves would be likely to consider if they were making the decision or acting for themselves.

Avoid discrimination

• Not make assumptions about someone’s best interests simply on the basis of the person’s age, appearance, condition or behaviour.

Assess whether the person might regain capacity

• Consider if the person is likely to regain capacity (e.g. after receiving medical treatment). If so, can the decision wait until then?

Consult others

• If it is practical and appropriate to do so, consult other people for their views about the person’s best interests and to see if they have any information about the person’s wishes and feelings, beliefs and values. In particular, try to consult:
• Anyone previously named by the person as someone to be consulted on either the decision in question or on similar issues.
• Anyone engaged in caring for the person.
• Close relatives, friends or others who take an interest in the person’s welfare.
• Any attorney appointed under a Lasting Power of Attorney or Enduring Power of Attorney made by the person.
• Any deputy appointed by the Court of Protection to make decisions for the person.
• For decisions about major medical treatment, where no-one fits into any of the above categories an Independent Mental Capacity advocate (IMCA) must be consulted.