Assessment of Capacity
The Mental Capacity Act and the Code of Practice, provides a framework for assessing capacity, deciding what to do if someone lacks capacity for a particular decision, and how to go about resolving disputes.
It must be assumed that a person has capacity, unless it is established otherwise.
“Capacity” means being able to make a particular decision – and so capacity is only meaningful for a particular decision at a specific time. The starting point to assess capacity is always “what is the decision that needs to be made, and when?”
Everything reasonably possible must be done to support and enable a person to make each decision for themselves before they can be assessed to lack capacity – the MCA is as much about empowerment and autonomy as it is about protection and paternalism. Only rarely will a decision truly need to be made immediately and investment of time and effort in this empowerment is especially important for more significant decisions with longer term consequences.
The legal test is that a person is unable to make a particular decision for himself if, because of “an impairment of, or a disturbance in the functioning of, the mind or brain”, he is unable:
A. To understand the information relevant to that decision, or
B. To retain that information, or
C. To use or weigh that information as part of a decision making process, or
D. To communicate his decision by any means.
So a capacity cannot be generic, but must relate to a particular decision. The information relevant to that decision must be clear, and this means the pros and cons of each option actually available (not just the option preferred by professionals), and the consequences of each option, including of not making a decision at all.
Best interest decision
Best Interest decision making is only undertaken if it has been established that the person lacks capacity to make the decision themselves.
“An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.” s1(5) MCA 2005
Best Interest decisions are made standing in the shoes of the person who lacks capacity, and so can only choose from options that would have been available to him if he had capacity to decide for himself. “Best interests” is not a “blank cheque” and does not “trump” prior resource allocation.
Some kinds of decision, typically about personal or family relationships, cannot be made using best interests. Before making a best interest’s decision, think about whether P is likely to regain capacity to make the decision for him before the decision needs to be made.
The person must be included in the best interest decision making process as much as possible. Their wishes, beliefs and values – both at the moment, despite their lack of capacity for this decision now, and previously, if there was a time when they would have had capacity for this decision – are treated by the Courts as enormously influential in coming to a “best interests” decision. (The current Law Commission proposals to reform the law on deprivation of liberty go further, and argue that the MCA should be amended to make it a presumption as a starting point that the person’s wishes should determine their best interests).
Consult with relevant people. This includes anyone “engaged with caring for the person, or interested in their welfare” (i.e. not just family or “next of kin”, but also carers, neighbours and friends, where appropriate); anyone previously named by the person to be consulted, and any deputy or power of attorney.
As with assessment of capacity, the level of formality of a best interest’s decision should reflect the complexity and significance of the decision. For some, but not all, decisions, a formal meeting and careful documentation may be appropriate, noting the decision maker, process, those consulted, factors weighed, and decision made. Documentation should record the decision making, and not just the decision.
For very controversial or significant decisions the approval of the court is appropriate, and some decisions, such as serious medical treatment, can only be made by the Court.
Coroners and Justice Act 2009
From Monday 3 April 2017 the Coroners and Justice Act 2009 was amended so that people subject to authorisations under DoLS will no longer be considered to be ‘otherwise in state detention’ for the purposes of Section 1 of the Coroners and Justice Act 2009. This means that coroners will no longer be under a duty to investigate a death solely because a DoLS authorisation was in place. Such deaths will only be reported to the coroner if the cause of death is unknown, or where there are concerns that the death was violent or unnatural.