Mental capacity

If you have mental capacity you understand the impact of a decision.

We must always assume that a child or young person has mental capacity. An adult (this includes young people aged 16 or over) has full capacity to make decisions themselves. This is known as the right to autonomy.

When is a mental capacity assessment needed?

A young person or adult may need a mental capacity assessment. This should happen if there is reasonable doubt that your child has the mental capacity to make decisions. An assessment can happen from the age of 16. The Mental Capacity Act Code of Practice Chapter 1.2, states that people must be given all appropriate help and support: 

  • To enable them to make their own decisions
  • To maximise their participation in any decision-making process

A mental capacity assessment may be needed when important decisions have to be made and the person’s capacity may be challenged by someone. For example: 

  • Whether a person should move to new housing or receive care, treatment or support at home 
  • When there are significant financial or property issues
  • When the decision is about keeping someone alive or other significant medical treatment
  • When other people may be at risk

Some decisions can never be made on someone else’s behalf. For example decisions about:

  • Marriage 
  • Civil partnership
  • Divorce
  • Sexual relationships
  • Adoption
  • Voting
  • Consent to fertility treatment

When might someone lack mental capacity?

A person may lack mental capacity if they have an impairment or disturbance that affects the way their mind or brain works. This could be a disability, condition or trauma. This stops them from being able to understand, retain and weigh up information as part of decision-making and communicate their decision. In order to make a decision, a person needs to be able to:

  • Understand information about the decision to be made
  • Keep that information in their mind
  • Use or weigh up that information as part of the decision-making process
  • Communicate their decision (in any way)

The Mental Capacity Act 2005 is there to help and support people who lack mental capacity. It is not there to stop people from making decisions about their lives. It aims to protect people who lack capacity but also to support them to make decisions, or to take part in decision-making, as far as they are able to do so.

The five statutory principles described in the Mental Capacity Act Code of Practice, Chapter 2 are:

  1. A person must be assumed to have capacity unless it is shown that they lack capacity
  2. A person is not to be treated as unable to make a decision, unless all possible steps to help them to do so have been taken without success
  3. A person is not to be treated as unable to make a decision merely because they makes an unwise decision
  4. An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in their best interests
  5. Before an act is done, or a decision is made, thought must be given to whether the purpose can be achieved just as well in another way that is less restrictive of the person’s rights and freedom of action

Who makes assessments of mental capacity?

Anyone may be in a position where they need to make an assessment of capacity. For example:

  • Family members 
  • A care worker or care service manager 
  • A nurse or doctor 
  • A social worker 

It is the responsibility of everyone who makes decisions on behalf of others, to recognise their role and responsibilities under the Mental Capacity Act Code of Practice.

What happens during a mental capacity assessment?

The Mental Capacity Act 2005 has a ‘presumption of capacity’ principle. Most people are assumed to have mental capacity unless it is proved otherwise.

Before the assessment the assessor should:

  • Be sure that there is not already a valid deputy who has the legal authority to make the decision
  • Be clear about the decision that needs to be made
  • Consider the person’s diagnosis when arranging the assessment appointment. They should consider the best time of day and place, to give the person the best chance to show they have capacity
  • Consider the person’s communication needs and whether they need specialised equipment or support
  • Be clear about the options to ensure they are able to clearly explain them in an appropriate way
  • Be clear about the key information for each option. They should also be clear how to present this to the person to enable them, as far as possible, to make a decision

During the assessment the assessor will test your child for mental capacity in two stages:

  • Stage 1 (diagnostic). This requires proof that your child has an impairment of the mind or brain. Or a disturbance that affects the way their mind or brain works
  • Stage 2 (functional). Your child must be given relevant information about the decision they need to make. They should be given all practical and appropriate support to receive the information in a way that is most appropriate, to help them to understand and make the decision for themselves. For example, the nature of the decision, the reason why it is needed and the likely effects of deciding one way or the other or of making no decision at all 

After the assessment

Using a mental capacity assessment form, the assessor will write down the details of the assessment including:

  • The decision required to be made
  • Background information
  • Whether based on their assessment, on the balance of probability, your child lacks capacity 

If your child has mental capacity

If your child is assessed as having mental capacity, you may still be concerned that they may wish to make an unwise decision. In this situation, your child should be supported with risk assessment planning. This is so that they are supported to maintain their safety as far as possible. If needed, a plan should be agreed to seek additional support or to reassess their mental capacity in the future.

If your child lacks mental capacity

The assessor should tell you why they believe your child lacks capacity. This might be around their understanding of money or contracts e.g. signing a tenancy agreement, or their ability to make decisions about their health care and the ability to keep themselves safe.

If the assessment indicates that your child has difficulty understanding financial matters, then you can apply to the Department for Work and Pensions to become their appointee. This gives you the power to deal with any benefits they may receive on their behalf. It does not mean you can choose how to spend their money.

Application to become your child’s deputy

If you feel your child needs more help than an appointeeship allows, then you will need to apply to the Court of Protection to become their deputy. A deputyship enables you to make decisions on behalf of an adult regarding their finances, where they live and their personal welfare. The application process takes several months. If you think that your child would not be able to sign a tenancy agreement, for example, you should apply before they start to look for accommodation.

Find more information about deputyships and how to apply 

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