What is mental capacity? - Having mental capacity means that a person is able to make their own decisions whether it be financial or in relation to their welfare.
In the event a person lacks capacity to make decisions for themselves, a Deputy is appointed through the Court of Protection. The statutory instrument that applies in these circumstances is the Mental Capacity Act 2005 which came into force in October 2007.
It is thought that there are about 2million people in England and Wales who lack the capacity to make decisions for themselves. This could arise for various reasons, such as a brain injury, a stroke, mental health problems, dementia or learning disability. With the population living longer, degenerative disease and mental illness are becoming increasingly a reality in many people’s lives. Where a person is vulnerable in this way, it is often necessary to appoint a Deputy through the Court of Protection to be responsible for the person’s property and financial affairs and sometimes in relation to their welfare.
Anyone can apply for a Deputy to be appointed and frequently this is done either by members of the family or those dealing with the care and support of the vulnerable person. The application can be for the appointment of professional Deputy in certain cases or the appointment of a family member.
The primary purpose of the Act is to promote and safeguard decision making within a legal framework. The Act is seen as empowering people to make decisions for themselves wherever possible, and by protecting people who lack capacity by providing a framework tailored for the person and which places that individual at the heart of the decision making process.
There are five key principles (Section 1 of the Mental Capacity Act) which apply under the Act and these are as follows:
- Every adult is presumed to have capacity unless proven otherwise. Effectively, this means that you cannot assume that someone cannot make a decision for themselves because they have a particular medical condition.
- A person must be given all the help possible before they are deemed not to have capacity. The emphasis is on whether a person can make the decision with the correct advice and practical help. Under the Mental Capacity Act, it is very important to involve the vulnerable person in so far as it is possible in the decision making process.
- The fact that a person makes an unwise decision in itself does not necessarily refute capacity.
- Everything that is done for the person who lacks mental capacity, i.e. the vulnerable person, must be done in their best interests.
- The person who makes the decision, i.e. the Deputy, needs to consider whether it is possible to make a decision that interferes less with the person’s rights or whether there is a need to decide or act at all. In other words, any intervention should be weighed up in the particular circumstances of the client.
It is only where a person, with the right advice, encouragement and support, is still unable to make the decision for themselves, or unable to remember or retain any of the information given, that one must look at a Deputyship Order. The fact that a person is eccentric or unwise in the decisions they make does not necessarily mean they lack capacity.
The test to assess capacity is in two stages. First, that there is an impairment or disturbance in the functioning of the person’s mind or brain, and if the answer to this question is ‘Yes’ then the second question is ‘is that impairment or disturbance sufficient that the person lacks the capacity to make a particular decision?’.
A person is unable to make their own decisions if they cannot do one or more of the following four things:
- Understand information given to them;
- Retain that information long enough to be able to make the decision;
- Weigh up the information available to make the decision;
- Communicate their decision – this could be by talking, using sign language or even signing in a different way such as blinking an eye.
The emphasis is on every effort being made to find ways of communicating with someone before deciding that they lack capacity.
If the person assessed is lacking capacity then any decision making process must still involve that person and the Deputy must show that the decision is being made in the person’s best interest. Notwithstanding the fact that the person lacks capacity, the person’s wishes must be considered and their opinion must be invited. The vulnerable person can either, by themself or through a carer, make their own feelings and wishes known and this can be done orally, in writing or via another person, and must be considered by the decision maker/the Deputy.