Mental capacity

Mental capacity is the ability to make a decision. A person’s ability to make a decision can be time and decision specific. This means that when trying to establish if a person has mental capacity or not it will depend on when the decision needs to be made and what the decision is, so the person you care for might lack capacity to make a decision on one day but be able to make that same decision another day.

The person you care for will lack mental capacity to make a particular decision at a particular time if they have an “impairment or disturbance of the mind or brain” for example because they are unconscious, have dementia or a brain injury, or a stroke and because of that impairment they are unable to do one of the following:

• Understand information relating to the decision
• Retain that information long enough to make the decision
• Take that information into account when making a decision
• Communicate the decision in any way

The law says that people must be assumed to have capacity unless we can prove otherwise and we should give the person all the support they need to help them make their own decision. This will be important, for example, if the person has a sensory impairment, if their first language is not English, or if they have a learning disability and would benefit from information being given in an easy to read format or pictures. We must also avoid assuming that a person who wishes to make what we feel is an unwise decision lacks capacity. Making an unwise decision is not the same as being ‘unable’ to make that decision.

If the person you care for is assessed by a health or social care professional not to have capacity to make a decision about their health and welfare, a best interest decision will need to be made on their behalf.

Although you have the legal right to be consulted on what is in their best interests by the most appropriate health/social care professional responsible for the person’s care, you will not automatically be able to make decisions on their behalf. For you to have the legal power to make decisions about a person’s health or care, that person must make you their Attorney for Health and Welfare whilst they still have capacity. See Lasting Power of Attorney.