What is meant by having or lacking capacity?
Capacity is the ability to make decisions at the time they need to be made. The MCA is clear that everyone is presumed to have capacity to make their own decisions unless it can be shown that they lack capacity to make a particular decision when it is needed, even with all practicable help. This is called ‘decision and time-specific capacity’ and it is what is always meant within the MCA when capacity is mentioned. Somebody does not become liable to have lots of capacity assessments to ‘pass’ just because, for example, they are aged 93, or have a diagnosis of a mental disorder or learning disability.
If nothing has raised any suspicion about the person’s ability to run their own life, not only is there no decision, or series of decisions, to link the assessment to, but there is also no legal justification for carrying out an assessment.
When should someone’s capacity be assessed?
It is vitally important to assess capacity correctly, at the right time, and in the right way.
Someone who is wrongly assessed as lacking capacity for a specific decision is likely to be denied their right to make that decision for themselves. This is particularly likely to happen if others think that someone’s own decision would not be in that person’s best interests. But remember the third principle of the MCA: nobody can be assumed to lack capacity for a decision, just because other people think their decision is unwise.
On the other hand, if a person lacks capacity for a decision but this is not recognised by those involved with them, great harm may come to the person. For example, if nobody realises Jinny lacks the capacity to find her way to the shops and back safely across the busy road, because of her very poor short-term memory, she is likely to get lost or be involved in a road traffic accident.
A capacity assessment is usually triggered because there is a decision that needs making, such as consenting to or refusing a care or health intervention. When you take action or make a decision affecting someone else’s life, protection from liability comes either:
- from a person agreeing, or consenting with capacity to your action or intervention, or
- through correctly applying the MCA to reach a best interests decision.
For an explanation of ‘protection from liability’ see the MCA Code of Practice, Chapter 6.
Note that the only exception to this is when a person needs treatment for a mental disorder, and this treatment is given in accordance with the Mental Health Act 1983 Part 4. For treatment under the Mental Health Act, see the Mental Health Act Code of Practice.
What is the MCA two-stage test of capacity?
Section 2(1) of the MCA states: ‘A person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.’ (Note the old-fashioned language of the Act: nowadays we would not assume that ‘man’ means ‘person’ in this way. But it does apply to everyone from the age of 16 upwards).
The ‘two steps’ needed to say someone lacks capacity for a decision (‘the matter’ in the legal language) are:
- The person is unable to make a specific decision at the time it needs to be made and
- The reason they cannot do this is because of some impairment, or disturbance in the functioning of, their mind or brain.
What is the ‘causal nexus’ in the two-stage test of capacity?
This is a legal way of describing how you must explain why you think the person’s lack of capacity is because of their impairment or disturbance in the mind or brain.
It means that you need to show evidence that, in all probability, the person’s inability to make this decision or series of decisions is due to an impairment or disturbance of their mind or brain. For example, a person might lack the capacity to consent to medication for their diabetes because of their dementia-related memory problems, which prevent them from remembering that they have diabetes at all or knowing whether they have taken the right amount at the right time or not. Or someone might lack capacity to decide to leave their home in the middle of the night because of their fixed delusion that they are late for school.
What does the MCA mean by being ‘unable to make a decision?’
The MCA says that someone is unable to make a decision if they cannot carry out all the following four steps:
- Understand relevant information about the decision (not in every detail, perhaps, but enough to know what is involved and reach a decision)
- Retain that information in their mind, not forever, but for long enough to
- Use or weigh that information to reach a decision, and
- Communicate their decision, by talking, using sign language, or any other means that are understandable.
Maximising capacity
The first three principles of the MCA stress that we must do everything possible to enable people to make their own decisions. A capacity assessment is not an exam, and we should not be looking for ways to ‘fail’ people. We must, instead, take all possible steps, bearing in mind the urgency and the importance of the decision, to facilitate decision-making. This might mean drawing pictures or taking photos of the options; being happy to repeat information as often as needed, getting help from a speech and language therapist or interpreter, or inviting a trusted relative or friend to help the person communicate their decision. For more about doing this, see the MCA Code of Practice, Chapter 3 which is all about maximising capacity.
What does the MCA mean by ‘impairment or disturbance in the functioning of the mind or brain’?
It is deliberately a very broad definition, designed to catch any condition that might make someone unable to make a decision when it needs making. An ‘impairment or disturbance’ might be very long-lasting, such as a profound learning disability, a severe acquired brain injury from a head injury or a stroke, or it may be temporary (for example, due to excessive alcohol, or a delirium caused by fever, or concussion). It might fluctuate: someone may be able to make more decisions when not tired, or when their medication has had a chance to work, or when their bipolar condition is well controlled. And there might not even be a clear diagnosis for the cause of the ‘impairment or disturbance,’ for example when someone has been found confused, or when someone is showing effects of a condition not yet diagnosed.
A person may be able to make some decisions but not others. It is important to avoid the assumption of global incapacity, since anyone who is conscious is likely to be able to demonstrate choices that should be respected as decisions whenever possible. These may be simple matters about food, clothes, music or ways the person chooses to be given care. All attempts must be made to discover and respect choices.