Mental Capacity – Whose decision?

Mental capacity is the ability to make your own decisions. Unfortunately, some people are not able to do this. There are several reasons that this could happen – dementia, a mental health problem, learning disability, intoxication or an acquired brain injury.

The Mental Capacity Act 

The Mental Capacity Act (MCA) was introduced in 2005 and provides a framework for decision making for adults over the age of 16 who do not have the capacity to make decisions on their own behalf.

The Act provides guidance and information for anyone who works with or cares for people who lack capacity, including family, friends, and carers.

Crucially, it is a fundamental principle of English law that adults have the right to make decisions on their own behalf and are assumed to have the capacity to do so, unless proven otherwise.

Presumed capacity

In 2016 the British Medical Association (BMA) produced a Toolkit for doctors to use as a prompt when providing care and treatment for people who lack, or who may lack, the mental capacity to make decisions on their own behalf.

The Toolkit addresses the issue of whether a person can make a decision and whether that can be used as proof of incapacity.

The Toolkit states: “The fact that an individual makes a rash, unwise or irrational decision, or begins to act out of character, is not itself proof of incapacity. All adults retain the right to make decisions which to others might seem unwise or irrational.

“Although such actions may raise questions about capacity – where for example they follow a period of illness or an accident – they are in no way determinative. What matters is the ability to make the decision, not the outcome.

At the heart of the Act lies the principle that where it is determined that individuals lack capacity, any decision or action taken on their behalf must be in their best interests. Practically speaking, what constitutes an individual’s best interests will depend upon the circumstances of each individual case.”

The best interests of the patient must be the prime consideration in all decisions on capacity.

The Toolkit states: “Particular regard must however be given to any statements of current or prior wishes or feelings expressed or made by the individual. Whenever a person is making a decision on behalf of an adult who lacks capacity, he or she must consider if it is possible to make the decision in a way that is less restrictive of that individual’s fundamental rights or freedoms. There are often several ways to achieve a desired outcome, and where possible the choice must be the one that interferes least with the individual’s freedoms while still achieving the necessary goal. The option chosen must, however, be in the person’s best interests, which may not in fact be the least restrictive.”

How do you assess capacity?

According to the BMA Toolkit: “The Act makes use of a ‘functional’ test of capacity, adapted from the common law, which focuses on the decision-making process itself. First it must be established that the person being assessed has ‘an impairment of, or a disturbance in the functioning of, the mind or brain’ which may affect their ability to make the decision in question. Secondly, having identified accordance with the points listed below that the person is unable to make the decision in question, it must be established that the inability to make the decision is a result of the aforementioned impairment or disturbance.

“Under the Act, a person is regarded as being unable to make a decision if, at the time the decision needs to be made, he or she is unable:

  • to understand the information relevant to the decision
  • to retain the information relevant to the decision
  • to use or weigh the information, or
  • to communicate the decision (by any means)

“Where an individual fails one or more parts of this test, then they do not have the relevant capacity and the entire test is failed. In assessing capacity, consideration should be given, where appropriate, to the views of those close to the individual. Family members and close friends may be able to provide valuable background information, although their views about what they might want for the individual must not be allowed to influence the assessment. An assessment that a person lacks the capacity to make a decision must not be discriminatory. It must not be based simply on:

  • age
  • appearance
  • assumptions about their condition
  • any aspect of their behaviour

A person should not be assessed as lacking capacity until all reasonable steps have been taken to assist them to make the decision.”

Personal injury cases 

If a person has sustained a brain injury and the medical and other evidence suggests that capacity may be an issue, we will arrange for an assessment to be undertaken, usually by a consultant neuropsychiatrist.

In a legal case if someone does not have capacity to litigate and they do not have a family member or close friend to represent them then we must make an application to appoint the Official Solicitor.

If a person is assessed as lacking capacity to manage their own property and financial affairs, then a Deputy will be appointed.

COVID-19 implications 

At the start of the pandemic the Care Quality Commission wrote to adult social care providers and GP practices with a statement prepared with the British Medical Association, Care Provider Alliance and Royal College of General Practitioners.

The statement raised concerns about care plans during the pandemic and urged professionals to follow best interest guidelines for those without the capacity to make decisions.

According to the statement: “The importance of having a personalised care plan in place, especially for older people, people who are frail or have other serious conditions has never been more important than it is now during the COVID-19 Pandemic.

“Where a person has capacity, as defined by the Mental Capacity Act, this advance care plan should always be discussed with them directly. Where a person lacks the capacity to engage with this process then it is reasonable to produce such a plan, following best interest guidelines with the involvement of family members or other appropriate individuals.

“Such advance care plans may result in the consideration and completion of a Do Not Attempt Resuscitation (DNAR) or ReSPECT form. It remains essential that these decisions are made on an individual basis. The General Practitioner continues to have a central role in the consideration, completion and signing of DNAR forms for people in community settings.

“It is unacceptable for advance care plans, with or without DNAR form completion to be applied to groups of people of any description. These decisions must continue to be made on an individual basis according to need.”

Capacity and social media 

Speaking at APIL Brain Injury Special Interest Group Talk on Capacity Issues in Personal Injury Litigation, which NV Legal attended, Marc Willems Q.C. from Cobden House Chambers addressed the issue of capacity and social media/internet use.

He said that the issue of social media and internet use is present in every brain injury case. If a person lacks capacity, they may not understand the implications of using social media or the internet.

For example, they may not understand that images or content can be shared across several sources, content posted on social media may offend other people and be illegal or that someone who appears friendly on social media may not be and could lead to exploitation.

The issue of capacity is a sensitive one and it can be difficult for family and friends of loved ones. If you are in a situation where you have concerns regarding a loved ones’ capacity as a result of injuries sustained in an accident, we can offer FREE legal advice.

Our solicitors are regulated by the Solicitors Regulation Authority and are experienced in handling cases where a person lacks mental capacity. 


BMA Toolkit for Mental Capacity

Social Care Institute for Excellence

Mental Capacity Act 2005 Code of Practice, Office of the Public Guardian (2007)