Assessing Mental Capacity under the Mental Capacity Act

The purpose of the mental capacity assessment is designed to protect and empower anyone over the age of 16 who may lack capacity to make their own decisions.  

There are 2 clear stages to the mental capacity assessment.

The Supreme Court case of A Local Authority v JB [2021] UKSC 52 resulted in this two-stage test for assessing capacity contained in the Code of Practice being reversed, so that the assessor should consider functional ability first. 

Stage 1 – Is the young person unable to make a particular decision (the functional test)?

Stage 2 – Is the inability to make a decision caused by an impairment of, or disturbance in the functioning of, a person's mind or brain? This could be due to long-term conditions such as mental illness or learning disability, or more temporary states such as confusion, unconsciousness, or the effects of drugs or alcohol (the diagnostic test).

The same 2 stage test applies for every assessment of mental capacity. However the nature of the information and practicable steps will vary depending on:

• The young person’s needs;
• The nature of the decision to be made; and
• The urgency in which the decision needs to be made.

The purpose of the functional test of capacity (stage 1) is to determine whether or not the young person is unable to make their own decision.

The functional test consists of 4 elements, each of which you must test the young person’s ability in. They are:

• The ability to understand information about the decision (the ‘relevant’ information);
• The ability to retain the information long enough to make the decision;
• The ability to use, or ‘weigh up’ the information as part of the decision making process; and
• The ability to communicate their decision through any means.

In order to make their own decision the young person must be able to demonstrate their ability in all of the areas of the functional test.

The purpose of the diagnostic test of capacity (stage 2) is to determine whether the inability to make a decision is caused by an impairment of, or disturbance in the functioning of, a person's mind or brain.

See Impairments of, or Disturbances in the Functioning of the Mind or Brain for guidance, including examples of impairments and disturbances that may exist.

Although this stage is commonly referred to as the diagnostic test, there is no requirement for a formal diagnosis in order to satisfy this test, and it is entirely legitimate to reach such a conclusion in the absence either of a formal diagnosis or being able to formulate precisely the underlying condition or conditions. An impairment or disturbance can include medical conditions causing confusion, drowsiness, concussion, and the symptoms of drug or alcohol abuse, and can be temporary or permanent.

In order for this stage/test to be met, the assessor must be satisfied that the inability to make a decision is because of the impairment of the mind or brain.  That is, there must be a causal link between the disturbance or impairment and the inability to make the decision(s) in question.

Some young people will have an impairment of, or disturbance in the functioning of their mind or brain that leads them to have:

• Periods where they are able to make their own decisions; and
• Periods where they lack capacity to make decisions.

Some of the things that can lead to a fluctuating ability to make decisions include:

• Periods of anxiety or distress;
• Periods of delusion, mania or depression;
• The effect of medication;
• Drug and alcohol use;
• Acute illness or severe pain.

If an urgent decision is not required you should always consider delaying the assessment so that the young person can make the decision for themselves.

The outcome of the mental capacity assessment must be that either:

• The young person has capacity to make the decision; or
• The young person lacks capacity to make the decision.

However, mental capacity is complex and it can sometimes be difficult to categorically say that a young person is unable to make a decision. Often there may be:

• Some evidence that suggests a young person is unable to make the decision; and
• Some evidence that suggests they can.

If it is not clear whether or not a young person has capacity this determination must be made on the balance of probabilities. This is the legal threshold by which a young person’s capacity must be decided when this is not clear. This is the threshold applied by the Court of Protection.

The evidence that you have used to make your assessment should be clearly recorded and when making a decision the following must be taken into account:

• The views of the young person about their capacity to make the decision; and
• The basis for that view; and
• The views of others about the young person’s ability to make the decision; and
• The basis for that view.

If you have determined that the young person is able to make their own decision you should:

• Allow them to make their own decision; by
• Providing support as is practicable to enable them to do so.

If any decision that the young person make is likely to put them at risk of harm (or put others at risk of harm) you must consider the need to take any action under:

• The Mental Health Act 1983; or
• Children’s safeguarding procedures; or
• If the young person is 18, adult safeguarding procedures.

If you are concerned that a young person is making decisions (unwise or otherwise) as a result of coercion or undue influence a safeguarding concern may need to be raised in order to protect them from the effects of the coercive or controlling behaviour of others.

If you have determined that the young person is not able to make their own decision, and that they ‘lack capacity’ to do so you should ask the question:

• Is it likely that the young person will be able to make the decision in the future? and
• If so, can the decision be delayed until such a time when they can do so? and
• If so, you should consider delaying the assessment so that the young person can make the decision for themselves.

A formal record of the assessment and decision should be recorded as soon as possible after it has been carried out.

The record must demonstrate that the statutory principles of the Act have been applied and each element of the functional test assessed.

The record should contain all of the following:

• The evidence that has been used to confirm the presence of an impairment or disturbance of the mind or brain;
• The decision to be made;
• The relevant information that has been provided to the young person;
• The practicable steps that have been taken to support the young person to make their own decision;
• The outcome of each element of the functional test of capacity;
• The reason that the young person has been deemed to have, or to lack capacity to make the decision for themselves; and
• Where the young person has been deemed to lack capacity, the consideration that has been given to delaying the decision.

You should take steps to notify the following people of the outcome of the assessment:

• The young person who lacks capacity;
• Any representative of the person;
• Any Deputy;
• Anyone that the young person has asked you to notify; and
• Anyone else that you deem it relevant to notify, either with the young person’s consent or in their Best Interests if they lack capacity to consent.

There is no legal requirement to provide a copy of the formal record of the mental capacity assessment to anyone else. However, you should consider providing it to:

• The young person who lacks capacity;
• Anyone that the young person has asked you to provide a copy to;
• The Court of Protection at their request; and
• Any other person you deem it relevant to receive a copy, with the consent of the young person or in their Best Interests if they lack capacity to consent.

A review of the young person’s mental capacity should be carried out whenever:

• A young person assessed as being able to make their own decision starts to act in a way that may suggest they are no longer able to do so; or
• A young person assessed as lacking capacity to make their own decision behaves in a way, or learns a new skill that indicates they may now be able to do so.

If a young person has been assessed as unable to make decisions about their everyday care or routine treatment this should be reviewed:

• Whenever a Care Plan (or health plan) is reviewed; or
• Whenever an Education, Health and Care Plan is reviewed;
• During any other assessment or planning process, including safeguarding; and
• By anyone supporting the young person each time that an act is carried out to implement a Best Interests decision.