In UK law, mental capacity is the ability to make a specific decision at the time it is needed. This involves being able to understand the information, retain it, weigh up options, and communicate the decision. The Mental Capacity Act 2005 provides a legal framework for England and Wales to protect and empower individuals who lack mental capacity.
How is mental capacity assessed?
A person is assumed to have capacity unless it is proven they lack it. Someone lacks capacity if their mind is impaired in some way, preventing them from making a decision at that specific time. They lack capacity if they cannot do one or more of the following:
- Understand the relevant information about the decision.
- Retain the information long enough to make the decision.
- Use or weigh up the information as part of the decision-making process.
- Communicate their decision in any way.
Important principles
Capacity is specific and time-bound: A person may have capacity for one decision but not another, and may have capacity at one time but not another.
Don't assume a lack of capacity: A person is not treated as unable to make a decision just because they are 16 or over, have a mental health condition, or make an unwise decision. All practicable steps must be taken to help them make their own decision first.
Act in the person's best interests: Any act or decision made on behalf of a person who lacks capacity must be done in their best interests.
Least restrictive option: Decisions must be made in the way that is least restrictive of the person's rights and freedom of action.
For further information please see the links in Related Information.
