What is mental capacity and why is it important?
Mental capacity is the ability to use and understand information to make a decision, and communicate any decision made. Such decisions can be everyday decisions, e.g. what to wear, or more important decisions, such as where to live. Mental capacity is also a crucial requirement for many legal things. For instance, you must have mental capacity to make a Will or make a Lasting Power of Attorney, as well as to legally marry. You must also have the mental capacity to consent to medical treatment. Hence, the issue of mental capacity often comes up in the field of medicine, particularly where there are disputes about medical treatment. Mental capacity and medical treatment are intertwined, along with the principle of informed consent and many areas of Human Rights.
The Mental Capacity Act 2005 (MCA 05), provides the legal framework for making decisions on behalf of people who lack the mental capacity to make decisions themselves. The MCA 05 sets out 5 ‘statutory principles’:
- a person must be assumed to have capacity unless it is established that they lack capacity
- a person is not to be treated as unable to make a decision unless all practicable steps to help them to do so have been taken without success
- a person is not to be treated as unable to make a decision merely because they make an unwise decision
- an act done, or decision made, under the Act for or on behalf of a person who lacks capacity must be done, or made, in their best interests
- before the act is done, or the decisions is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action
There is a Mental Capacity Act Code of Practice which explains the Mental Capacity Act 2005 in detail.
Explore this topic further via MIND here
Read the GMC’s view on mental capacity here
What does lacking mental capacity mean?
A person is said to lack mental capacity if their brain or mind is impaired or disturbed in some way, as this means that they are unable to make a decision at that particular time, about the particular issue in question. Lacing mental capacity is almost always not a fixed point, or a line that one crosses never to return from. You can lack mental capacity only for a short period, or you can have mental capacity for some things, but not for others. For this reason we say that assessing mental capacity is time and function specific.
Examples of how a person's brain or mind may be impaired include:
- mental health conditions – such as schizophrenia or bipolar disorder
- severe learning disabilities
- brain damage – for example, from a stroke or other brain injury
- physical or mental conditions that cause confusion, drowsiness or a loss of consciousness
- intoxication caused by drugs or alcohol misuse
Someone with any of the impairments listed above will not always be deemed as lacking mental capacity. However, they will be assessed as such if they cannot:
- understand information about the decision in question
- remember that information
- use that information to make a decision
- communicate their decision by talking, using sign language or any other means
Explore this topic further via Mental Health Foundation here
How mental capacity is assessed
As mental capacity can change over time, it must always be assessed at the time that consent to anything is required, (time and function specific). Normally, the person who is involved with the decision which needs to be made, is the person who assesses mental capacity. If the decision is a complex one then a professional opinion might be necessary, for example the opinion of a psychiatrist, psychologist, social worker, lawyer etc. More information on mental capacity assessments can be found in the The Mental Capacity Act 2005 (MCA 05)
In the field of health care, an assessment is usually carried out by an appropriately trained and experienced healthcare professional who's either:
- recommending a treatment or investigation
- involved in carrying it out
If a healthcare professional feels that a person has mental capacity to give or refuse their consent to a particular treatment, their decision must be accepted and their wishes respected, even if that person loses capacity at a later stage. This is because a person with mental capacity can give or refuse informed consent to any medical treatment or investigation. Further, the decision of a person with mental capacity must be respected, even if their decision is felt to be unwise, and that it could ultimately hasten their death, (e.g., refusing to consent to a lifesaving operation). Sometimes, mental capacity and the refusal of treatment can be a nuanced and complex area. For this reason, it is sometimes a good idea to get a professional involved.
One of the fundamental principles of the MCA 05 is that if a person makes a decision about treatment that other people would consider to be irrational, it does not necessarily mean that they lack mental capacity, as long as they understand the reality of their situation. In other words, the overriding principle enshrined in the MCA 05 is that everyone is entitled to make a decision, whether or not that decision may be considered wrong or eccentric by others. For the most part there is no necessity to interfere in that decision-making process. However, while respecting the autonomy of a person to make decisions, English law has always recognised that there are individuals who lack the mental capacity to be held accountable for their decisions.
As an example, a person who refuses to have a blood transfusion because it is against their religious beliefs would not be thought to lack mental capacity, as they understand the reality of their situation and the consequences of their actions. But someone with anorexia who is severely malnourished and rejects treatment because they refuse to accept there's anything wrong with them, could be considered to lack mental capacity, as they may be regarded as not fully understanding the reality of their situation or the consequences of their refusal of treatment.
Read the NHS view on capacity assessments here
What are best interest decisions for a person lacking mental capacity?
There are many important elements involved in trying to determine what a person's best interests are when they lack mental capacity to make decisions. These include:
- considering whether it's safe to wait until the person can give consent if it's likely they could regain capacity at a later stage
- involving the person in the decision as much as possible
- trying to identify any issues the person would take into account if they were making the decision themselves, including religious or moral beliefs – these would be based on views the person expressed previously, as well as any insight close relatives or friends can offer
- finding out what action the person previously took about similar past decisions
You will note from the above that a person's close family and friends should be included in a best interests decision. This is because they will often have lots of information and knowledge about how the person in question lived their life when they had capacity, and what their views on certain things are, such as where they would like to live, and what medical treatment they would consent to or refuse.
If a person is felt to lack mental capacity and there is nobody suitable to help make best interests decisions, such as family members or friends, an independent mental capacity advocate (IMCA) must be consulted.
In situations where there is serious doubt or dispute about what is in an incapacitated person's best interests, the matter will go to the Court of Protection for a ruling. This is the legal body that oversees the operation of the Mental Capacity Act 2005 (MCA 05).
In the field of healthcare, situations that must always be referred to the Court include:
- sterilisation for contraceptive purposes
- donation of organs or regenerative tissue, such as bone marrow
- withdrawal of nutrition and hydration from a person who's in a permanent vegetative state or minimally conscious state
Planning for the future a regards loss of mental capacity
Any one of us may suffer an event or illness which affects our mental capacity to make decisions in the future. For this reason it is possible to plan for this when you do have mental capacity, by making a legally binding advance decision, also known as a living will, to deal with medical treatment issues, and/or to make Lasting Powers of Attorney, (LPA's), for both health and welfare matters, and property and finance matters.
If an adult lacks mental capacity to deal with their property and finances, and they do not have an LPA, then it is usually necessary for someone to apply to the Court of Protection to become their Deputy for this purpose. Read more about “Deputyship appointments” here.
If an adult lacks mental capacity as regards their health and welfare matters, and they have not made an advance decision or an LPA for health and welfare, then decisions on these matters are generally made in their best interests, by a person deemed as the "decision maker". For instance, if an adult lacks mental capacity to decide where to live, a best interests decision may be made for them by their appointed social worker, after considering their best interests. If an adult lacks mental capacity to give or refuse consent to medical treatment, a decision about whether or not to go ahead with the treatment will be made by the healthcare professionals treating them, after considering their best interests.
Read more about best interests here
Mental capacity - things to remember
- A person's mental capacity can change or fluctuate. Someone may have the capacity to make some decisions but not others, or their capacity may come and go.
- In some cases, people can be considered capable of deciding some aspects of, say, finances, welfare issues or medical treatment, but not others. For example, a person with severe learning difficulties may be capable of deciding on their day-to-day treatment, but incapable of understanding the complexities of their long-term treatment.
- Some people with certain health conditions may have periods when they are capable and periods when they are incapable. For example, a person with schizophrenia may have psychotic episodes when they cannot distinguish between reality and fantasy, during which they may not be capable of making certain decisions.
- A person's capacity can be temporarily affected by shock, panic, extreme tiredness (fatigue), alcohol and drugs, certain infections and prescribed medication
If a person is assessed as lacking mental capacity and you believe they in fact have mental capacity, there are various ways to try and resolve this, if the decision in question is a serious one, especially if it involves medical treatment.
- The matter can be raised with the person who carried out the mental capacity assessment. They can be asked to give their reasons why they believe the person lacks mental capacity to make the decision in question, and asked to provide objective evidence to support that belief.
- A second opinion could be sought from an independent professional. 3. An application to the Court of Protection can be made for them to determine whether a person has mental capacity