Mental capacity refers to an individual's ability to make specific decisions or understand and retain information relevant to a particular decision. It encompasses the ability to understand the nature and consequences of the decision, weigh the available options, and communicate one's decision effectively.
In the United Kingdom, the legal framework for assessing mental capacity is provided by the Mental Capacity Act 2005. According to Section 2 of the Act, a person lacks capacity in relation to a specific matter if they are unable to make a decision for themselves due to an impairment or disturbance of the mind or brain.
The Act also sets out the principles that should be followed when assessing mental capacity. These principles include:
1. A presumption of capacity: Every adult is presumed to have the capacity to make decisions unless it is proven otherwise.
2. Supportive decision-making: Individuals should be provided with appropriate support and accommodations to help them make decisions for themselves.
3. Maximizing decision-making capacity: Steps should be taken to maximize a person's ability to make decisions, such as providing information in accessible formats or using communication aids.
4. Best interests: If a person lacks capacity to make a decision, any decision made or action taken on their behalf should be in their best interests.
The Mental Capacity Act 2005 establishes a legal framework for determining mental capacity and provides guidance for healthcare professionals, lawyers, and others involved in assessing capacity. However, it is important to note that capacity assessments are made on a case-by-case basis and can involve healthcare professionals, social workers, and other relevant individuals who are familiar with the person's condition and circumstances.
It is worth consulting the Mental Capacity Act 2005 itself, as well as seeking professional legal advice, for comprehensive and up-to-date information on mental capacity and the process of determining it.
Qualia Law CIC is a non-profit social enterprise providing free legal advice in the areas of mental capacity, financial safeguarding, lasting power of attorney (LPA) and Court of Protection. In addition, Qualia Law CIC provides not-for-profit professional Deputyship or Attorneyship by expert solicitors, which may be necessary for individuals who may not have relatives willing and able to take on the role of Deputy or Attorney.
For free advice, or to make a referral, please visit www.qualia-law.org/contact
