The history and current context of mental capacity legislation and policy

Assessment of capacity

Central to the use of the Act is the assessment of capacity. If there is a decision to be made, the individual should be asked to make it. If there is a suspicion that the individual may not be able to make their own decision, then an assessment of capacity is indicated. The assessment process is set out in the law and the Code of practice.

Section 3 of the Act dictates that a person is deemed unable to make a decision if they are unable to:

  1. Understand the information relevant to the decision or;
  2. retain that information or;
  3. use or weigh that information as part of the decision-making process or;
  4. communicate the decision using whatever means is appropriate for that person.

The inability to make the decision has to be due to an impairment or disturbance in the functioning of the mind or brain.

If the assessor proves that the person cannot make their own decision after every form of support has been tried, then it is likely that a decision will need to be made for them. However, it is important to note that a finding of a lack of capacity does not mean that a professional makes a “best interest decision”. Instead, the potential decision maker has to check that there are no alternative decision makers in place.