What does it mean if someone lacks mental capacity?

If you are told a loved one lacks mental capacity, you may be unsure what that means. Daniel Doswell of Coodes’ Mental Health and Community Care team explains.

If you have been told that a loved one lacks mental capacity you may understandably be unsure exactly what that means and how the diagnosis will affect them. The legal definition of mental capacity is complex and five key principles underline how someone who lacks capacity should be treated.

In very simple terms, lacking mental capacity means being unable to make certain important life decisions as a result of the functioning of the mind being disturbed or impaired.

Why might someone lack mental capacity?

There are many reasons why someone may be unable to make certain decisions for themselves. It could be the result of a condition, such as dementia, or an accident that has caused a brain injury. Someone may lack capacity to make certain decisions because of a learning disability. Alternatively, it might be because of a mental health problem, including bipolar disorder or alcohol or drug addiction.

Someone who lacks capacity may not be able to make decisions on important aspects of their life. This could include:

• Where they live
• How they should be cared for
• What medical treatment they would choose to receive
• How they look after their money
• Any other significant areas of life, such as who they have contact with

If you are concerned that a loved one may lack capacity, contact your GP, local authority or our Mental Health and Community Care team. They can then arrange for an assessment.

The Mental Capacity Act

Mental capacity is defined in a piece of legislation called the Mental Capacity Act 2005. It sets out what mental capacity means, how it is diagnosed and what should happen if someone is found to lack capacity.

The act is built around five key principles:

1. Everyone is assumed to have capacity unless it is established otherwise.
2. Someone should not be treated as unable to make a decision “unless all practicable steps to help him or her to do so have been taken without success.”
3. Someone should not be treated as being unable to make a decision just because they have made an “unwise decision.”
4. Any steps taken on behalf of someone who lacks capacity must be done in their best interests.
5. Anyone making a decision on behalf of an individual must first consider whether there is an alternative option that is less restrictive of a person’s rights and freedoms.

These principles should underline the way the individual is treated going forwards. However, mental capacity is sometimes misunderstood and these important values are not always followed.

How is someone diagnosed as lacking mental capacity?

There is a legal test for capacity, which should apply to any assessment that might be carried out by a social worker, GP or other health professional. It includes two stages:

1. The diagnostic stage

The person carrying out the test will consider whether the individual suffers from an “impairment or disturbance in the functioning of the mind or brain.” This will mean identifying an illness or other issue that could cause the person to lack mental capacity.

2. The functional stage

This stage will involve assessing whether or not the person is able to:

• Understand information that is relevant to a particular decision. This is important because, while they may be confused about some aspects of their life, they may be able to understand enough to make a decision.
• Retain that information for as long as is necessary. This can be challenging to assess if the individual suffers short term memory loss. However, the key question is whether or not they can hold information about the decision in question for long enough to come to a conclusion.
• Weigh up their options. This can be a complex area because we all make decisions in a very individual and subjective way. That means that some people will put particular emphasis on an aspect of the decision that other people may not or may perhaps seems unusual.
• Communicate their decision in whatever way they can. This does not have to be verbal communication. They may, for example, state their preference through gestures.

You can challenge a mental capacity assessment, either for yourself or on behalf of another person. We can support you to do this and have successfully challenged a number of assessments, both informally and through the Court of Protection.

When might the Court of Protection get involved?

People who lack mental capacity can often be empowered to make a decision themselves, with some additional support. In many cases, decisions can be made in their best interests by family members and professionals such as social workers or doctors working together.

However, the Court of Protection sometimes needs to get involved to make a decision on behalf of an individual who lacks capacity. This could be when:

• There is disagreement about what is in the best interests of the individual.
• There are concerns about an individual’s welfare.

If you have any concerns about a loved one’s mental capacity, or if you would like to challenge a capacity assessment we can help.

For advice on this issue, contact Daniel Doswell in Coodes Solicitors’ Mental Health and Community Care team on daniel.doswell@coodes.co.uk.