How is Mental Capacity Defined and Assessed?

Tim Farmer is founder of TSF Consultants, the UK’s largest provider of mental capacity assessments to the legal profession.  A  registered Mental Health Nurse by trade, he has over 13 years’ experience of assessing mental state and working with those who have reduced capacity.

In this article, Tim explains Mental Capacity and talks us through how it is assessed, using the legal framework of the Mental Capacity Act 2005 and the two stage test.

Mental Capacity

The term “Mental Capacity” is probably one which you will first encounter when either you or someone you know is experiencing some sort of difficulty, often (but not exclusively) relating to memory. It is a term that can seem puzzling and vague but, if explained and used correctly, it is something that can bring clarity and direction to otherwise confusing situations.

So what is it?

The phrase ‘Mental Capacity’ relates to a person’s understanding of decisions or actions that they are about to take and it comes from The Mental Capacity Act 2005, which is an Act of Parliament.

Its primary purpose is to provide a legal framework for acting and making decisions on behalf of adults who lack the capacity to make particular decisions for themselves. The Act itself outlines a process for assessing capacity known as the ‘two stage test’ and also outlines five key principles in the assessment of capacity.

The Two Stage Test - Part 1

The first part of the test simply asks “Is there an impairment of or disturbance in the functioning of the person’s mind or brain?”

Now, ‘impairment’ can be anything that affects the way a person thinks. It can be a long term condition such as Dementia or it can be a short term condition such as an infection that causes someone to hallucinate or lose their bearings in relation to time, place and person.

If we ask the question “Is there an impairment to the functioning of the mind or the brain?” and the answer is “No, there is no an impairment” then, according to the five principles of the Mental Capacity Act, that person is assumed to have capacity.

If the answer to this question is “Yes, there is an impairment”, then you move onto the second part of the test (often called the ‘functional test’).

The Two Stage Test - Part 2

The second part of the two stage test outlines four criteria that a person needs to meet to demonstrate they have mental capacity:

• Can the person understand information about the decision to be made?
• Can the person retain that information in their mind?
• Can the person use or weigh-up that information as part of the decision process?
• Can the person communicate their decision?
• If a person fails to meet anyone of these criteria, then a person is assumed not to have mental capacity.

The Five Principles

I mentioned earlier that there are five principles to the Mental Capacity Act and these are designed not only to protect people who lack capacity to make particular decisions, but also to maximise their ability to make decisions, or to participate in decision-making, as far as they are able to do so.

The five principles are:

• A person must be assumed to have capacity unless it is established that he/she lacks capacity.
• A person is not to be treated as unable to make a decision unless all practicable steps to help him/her to do so have been taken without success.
• A person is not to be treated as unable to make a decision merely because he/she makes an unwise decision.
• Any act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his/ her best interests.
• Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.

In a nutshell...

Mental Capacity is a term that relates to a person’s understanding of any decision or action that they may take. It is governed by five main principles and is tested using the two stage test.

Tim Farmer is a specialist in the assessment of mental capacity and founder of TSF Consultants, the UK’s largest provider of mental capacity assessments to the legal profession.  He may be reached on tsf@tsfconsultants.co.uk.