Mental capacity refers to the ability of an individual to make a specific decision at the time it needs to be made. It involves understanding the decision, the reasons for the decision, and the likely outcomes of making or not making this decision. Crucially, mental capacity is decision and time specific.  This means that an individual may have the capacity to make certain decisions but not others and whilst they lack capacity to make a decision at a particular time, they may regain capacity to make the decision at a later time or date.

The Principles of the Mental Capacity Act 2005

The Mental Capacity Act is built around five key principles that ensure respect for individuals and their rights to participate in decision-making as much as they can:

  1. Presumption of capacity: Every adult has the right to make their own decisions and must be assumed to have the capacity to do so unless proven otherwise.
  2. Individuals being supported to make their own decisions: A person must be given all practicable help before anyone treats them as not being able to make their own decisions.
  3. Unwise decisions: People have the right to make decisions that others may consider unwise or eccentric if they have the capacity to make them.
  4. Best interests: Any act done, or decision made under the Act for or on behalf of a person who lacks capacity must be done in their best interests.
  5. Least restrictive option: Any intervention should be the least restrictive of their basic rights and freedoms.

Assessing Mental Capacity

The process of determining if someone lacks mental capacity is crucial and must be conducted carefully. It involves a two-stage test:

  • Diagnostic Test: Does the person have an impairment of, or a disturbance in the functioning of, their mind or brain? This could be because of conditions like dementia, mental health difficulties, brain injuries, or developmental disorders.
  • Functional Test: Can the person understand, retain, use, or weigh the necessary information to make a particular decision, and can they communicate their decision?

Why It Matters

The concept of mental capacity is not just a legal formality but a fundamental part of respecting and upholding the dignity of individuals who may need support in making decisions. It affects a wide range of decisions, including financial, contractual, social, and medical decisions.

Professionals who work with individuals lacking capacity need to apply the principles of the Act carefully and consistently. This ensures that the rights of the most vulnerable are protected while enabling their participation in decisions about their lives to the fullest extent possible.

As we continue to navigate these complex situations, understanding and correctly implementing the principles of the Mental Capacity Act 2005 is more important than ever. It enables us to provide the necessary support and protection to those who need it most, ensuring their decisions are respected and their welfare prioritized.

Understanding Mental Capacity: A Guide Under the Mental Capacity Act 2005

As a solicitor specializing in adult care and capacity law, a fundamental aspect of my practice is the application of the Mental Capacity Act 2005.  This pivotal legislation provides the legal framework for acting and making decisions on behalf of individuals who lack the mental capacity to make those decisions themselves. Understanding what constitutes ‘mental capacity’ is crucial for professionals, caregivers, and family members alike.  My colleagues and I guide clients through the difficulties they face when someone close to them lacks capacity to make decisions on both property and financial, and health and welfare decisions. 

Speak to Katrina Vollentine

Katrina is a Partner at Wollens and can advise you. Contact Katrina via email katrina.vollentine@wollens.co.uk or call 01803 225181.

You can also complete an online enquiry form. One of the Wollens team will contact you as soon as they are available.