In an earlier article, we considered the issue of mental capacity more generally. We now consider who can carry out a mental capacity assessment. To speak to our Lifetime Planning and Wills Team, call them on 01225 755656. Alternatively, you can email them, or complete the Contact Form at the foot of this page.
There is often confusion as to who can carry out a mental capacity assessment.
A mental capacity assessment is a test to determine whether a person has the capacity to make decisions. These may be day-to-day decisions such as what to wear or eat or bigger and potentially life-changing decisions concerning medical treatment, where to live, or financial matters.
For several reasons, it may be appropriate to carry out a mental capacity assessment. For example, maybe the person’s behaviour or circumstances have changed. Or perhaps they have suffered an injury or have been diagnosed with a medical condition that impairs their decision-making ability.
Mental capacity assessment example
A typical example where a mental capacity assessment may be appropriate is when you suspect a person has dementia. Triggers might be unwise decisions or actions that appear irrational, out of character, and which could cause them harm.
Mental capacity assessment
The Mental Capacity Act 2005 (MCA) sets out a 2-stage test of mental capacity:
- Is there an impairment of or disturbance in the functioning of a person’s mind or brain? The assumption must always be that the person has capacity to make decisions for themselves, and there should be no coercion or undue influence by the questioner. Also, this test includes considering any evidence such as medical records.
- If the first test is satisfied, is the impairment or disturbance sufficient that the person lacks the capacity to make the decision in question at that time? A person can lack capacity to make some decisions, but have capacity to make others. And it’s also important to appreciate that mental capacity can fluctuate with time, perhaps even depending on the time of day. Where appropriate, others should allow the person time to make a decision themselves.
It’s clear from the MCA that others should not make assumptions about an individual’s lack of capacity based on their age, appearance or condition. Also, decision-makers must uphold the principles of “equal consideration”, ie others should not treat the person less favourably than anyone else.
Who can carry out a mental capacity assessment?
Technically, anyone can carry out a mental capacity assessment. But to be appropriate, it should be by someone involved in supporting the person, and who will be responsible for deciding if the person cannot do so. So, this could be a relative or a close friend, but it could also include:
- a GP or nurse;
- a social or support worker;
- an occupational therapist;
- a deputy appointed by the Court of Protection.
And suppose the mental capacity assessment is relevant to a major decision, such as whether to sell a property. In that case, a suitable professional should carry out the assessment, and will then provide a report.
Mental Capacity Act principles
Whoever carries out the assessment, the five core principles set out in Section 1 of the Mental Capacity Act 2005 apply. They are:
- Assume a person has the capacity to make a decision themselves unless proved otherwise.
- Wherever possible, help people make their own decisions.
- Do not treat a person as lacking the capacity to make a decision just because they make an unwise decision.
- If you make a decision for someone who does not have capacity, it must be in their best interests.
- Treatment and care provided to someone who lacks capacity should be the least restrictive of their basic rights and freedoms.
What should happen if the tests find mental incapacity?
First, a formal record showing clear evidence of the assessment process being followed should be made and retained. If there is a subsequent application to the Court of Protection, they will expect to see that capacity has been appropriately assessed.
Second, if the finding is that the person cannot make a decision and this is likely to put them or others at risk of harm, consideration must be given to action under the Mental Health Act, or to Adult or Children’s Safeguarding Procedures.
Third, if it’s believed that capacity is unlikely to fluctuate in the foreseeable future, consideration should be given to appointing a deputy, which will involve an application to the Court of Protection.
Lasting Power of Attorney
On the other hand, if the finding is that the person simply requires assistance with making decisions, it may more appropriate to prepare a Lasting Power of Attorney to be registered with the Office of the Public Guardian. To do this, the person must have the capacity to make a Power of Attorney and understand the consequences of doing so.