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The concept of mental capacity

Individuals lacking capacity

Section 2 (1) 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 the brain”.

Capacity is decision specific. No-one simply “lacks capacity”. The more specific the question is, the more successful the process is likely to be. Although it might sound bizarre, it is important that the defined question is put forward to the individual concerned, and if you cannot do this you need to record the reason why. Section 2 (1) 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 the brain”.

Capacity is time specific. For some individuals’ capacity might fluctuate over shorter or longer periods of time affecting their ability to make decisions. If this is an ongoing situation it is important to get people to record their wishes at a point that they have capacity so that when a best interests decision is required, it can be made in the knowledge of what the person would want for themselves. The correct information will be crucial to a successful outcome. This is where case law is invaluable in identifying what information is or isn’t relevant in given circumstances. The 39 Essex Chambers Guide to Assessment of Mental Capacity in the appendix provides regularly updated materia .

Promoting individual Autonomy – A key principle of the Act and s.1(3) MCA 2005 requires us to take all practicable steps to help the person make their decision before concluding that they are unable to make a decision.