6.1 Mental Capacity – Salford Adult Social Care Information Hub

CQC Quality Statements

Theme 1 – Working with People: Assessing needs

We statement

Within Salford Care Organisation, we maximise the effectiveness of people’s care and treatment by assessing and reviewing their health, care, wellbeing and communication needs with them.

What people expect

I have care and support that is coordinated, and everyone works well together and with me.

I have care and support that enables me to live as I want to, seeing me as a unique person with skills, strengths and goals.

April 2025 – A new Section 3.2 Who should carry out a mental capacity assessment has been added, to provide information on which practitioners can carry out mental capacity assessments.

1. Definition

The Mental Capacity Act 2005 (MCA 2005) provides a framework to protect and restore power to those who may lack, or have reduced, mental capacity to make certain decisions at particular times. It places the adult at the centre of the decision making process.

‘Whenever the term ‘a person who lacks capacity’ is used, it means a person who lacks capacity to make a particular decision or take a particular action for themselves at the time the decision or action needs to be taken.

This reflects the fact that people may lack capacity to make some decisions for themselves, but will have capacity to make other decisions. For example, they may have capacity to make small decisions about everyday issues such as what to wear or what to eat, but lack capacity to make more complex decisions about financial matters.

It also reflects the fact that a person who lacks capacity to make a decision for themselves at a certain time may be able to make that decision at a later date. This may be because they have an illness or condition that means their capacity changes. Alternatively, it may be because at the time the decision needs to be made, they are unconscious or barely conscious whether due to an accident or being under anaesthetic or their ability to make a decision may be affected by the influence of alcohol or drugs.

Finally, it reflects the fact that while some people may always lack capacity to make some types of decisions – for example, due to a condition or severe learning disability that has affected them from birth – others may learn new skills that enable them to gain capacity and make decisions for themselves’ (MCA 2005 Code of Practice, p3).

The MCA legislates in relation to:

allowing adults to make as many decisions as they can for themselves;
enabling adults to make advance decisions about whether they would like future medical treatment;
allowing adults to appoint, in advance of losing mental capacity, another person to make decisions about personal welfare or property on their behalf at a future date;
allowing decisions concerning personal welfare or property and affairs to be made in the best interests of adults when they have not made any future plans and cannot make a decision at the time;
ensures an NHS body or local authority will appoint an independent mental capacity advocate to support someone who cannot make a decision about serious medical treatment, or about hospital, care home or residential accommodation, when there are no family or friends to be consulted (see also Independent Mental Capacity Advocate Service chapter);
providing protection against legal responsibility for carers who have honestly and reasonably sought to act in the adult’s best interests;
providing clarity and safeguards around research in relation to those who lack mental capacity.

The MCA relates to people over the age of 16 years old. However, these policies and procedures apply only to adults over the age of 18 years.

2. Principles of the Mental Capacity Act

Under the MCA, the following five principles apply:

it must be assumed that a person has mental capacity unless they have been assessed as lacking mental capacity;
a person should not be treated as unable to make a decision unless all practicable steps to help them do so have been taken without success;
a person should not be treated as unable to make a decision merely because they make a decision which seems to others to be an unwise or bad decision;
an act or decision carried out for the person who lacks mental capacity must be in their best interests;
before an act is done or the decision made, staff must consider whether the intended outcome can be achieved in a way that is less restrictive of the person’s rights and freedoms.

These five principles should inform all actions when working with a person who may lack or have reduced mental capacity and should be evidenced when making decisions or agreeing actions on their behalf.

3. Assessing Capacity

As noted in Section 2, Principles of the Mental Capacity Act, it must always be assumed that an adult has the mental capacity to make their own decisions unless it is established that they lack the capacity to do so.

Adults should be given practical and appropriate support to try to help them make any decision for themselves.

3.1 Three stage test

To help assess if a person lacks capacity, the MCA sets out a three-stage test.

Stage 1: The Functional Test – can the adult make the decision in question?

This involves looking at whether the adult is able to make the required decision.

Practical and appropriate support should be provided to the adult to help them make the decision for themselves.

A person is considered unable to make a decision if they cannot:

understand information about the decision to be made (‘relevant information’);
retain that information in their mind;
use or weigh that information as part of the decision making process; or
communicate their decision (by talking, using sign language or any other means).

There only needs to be evidence in one of these areas, not all of them.

If there are concerns that an adult has impaired executive function, it is especially important to use a holistic approach during the assessment process. This gathers information from others involved in the adult’s life, explores their decision-making processes with them and looks for ‘real world’ evidence that what the adult is saying matches their actions (for more information see Executive Function chapter).

If the adult cannot make the decision in question – even with support – Stage 2 must then be considered.

Stage 2: The Diagnostic Test – is the person unable to make the decision because of an impairment or disturbance in the functioning of their mind or brain?

Stage 2 requires evidence to show that the person has an impairment or disturbance of the mind or brain. Examples include:

conditions associated with some types of mental illness;
dementia;
significant learning disabilities;
the long term effects of brain damage;
physical or medical conditions that cause confusion, drowsiness or loss of consciousness;
delirium;
concussion following a head injury; and
effects of alcohol or drug use.

If the person does not have such an impairment or disturbance of the mind or brain, they will not lack capacity under the MCA.

Stage 3: The causative nexus

Once the adult has been identified as having an impairment or disturbance in the functioning of the mind or brain, it is important to determine that their inability to make the decision is because of this impairment. This is known as the ‘causative nexus’ (PC and NC v City of York Council [2013] EWCA Civ 478). Only where it can reasonably be said that the person cannot make the decision because of the impairment of their mind can it be stated that they lack capacity to make the decision.

Assessors should also consider the case of SS v London Borough of Richmond Upon Thames & Anor [2021] EWCOP 31 (30 April 2021) in which Mr Justice Hayden, Vice President of the Court of Protection highlighted

I hope Dr N will not think me too pedantic if I make the observation that “patient failed capacity assessment” strikes me as awkwardly expressed. It is not a test that an individual passes or fails, it is an evaluation of whether the presumption of capacity has been rebutted and if so, for what reason.

3.2 Who should carry out a mental capacity assessment

The Mental Capacity Act Code of Practice states that the person who assesses an adult’s mental capacity to make a decision is usually the person who is directly concerned with them at the time the decision needs to be made. This means that different people will be involved in assessing an adult’s mental capacity to make different decisions at different times.

For most day-to-day decisions, this will be the person caring for them at the time, for example, a care worker might need to assess if an adult can agree to being bathed; a nurse might need to assess if an adult can consent to have a dressing changed.

For acts of care or treatment (see chapter 6, Mental Capacity Act Code of Practice), the assessor must have a ‘reasonable belief’ that the adult lacks the mental capacity to agree to the action or decision that needs to be taken.
If a doctor or healthcare practitioner proposes treatment or an examination, they must assess the adult’s mental capacity to consent. In settings such as a hospital, this can involve the multi-disciplinary team. But ultimately, it is up to the practitioner who is responsible for the person’s treatment to make sure that their mental capacity has been assessed.

For a legal transaction (for example, making a will), a solicitor or legal practitioner must assess the adult’s – their client – mental capacity to instruct them. They must assess whether they have the mental capacity to satisfy any relevant legal test. If they are in any doubt, they should get an opinion from a doctor or other professional expert.
Any practitioner can carry out a mental capacity assessment. However, it is good practice to have completed relevant training; practitioners should first speak to their mental capacity lead in their organisation or line manager for information about the most relevant training for them.

If the adult has a complex condition/s (such as a learning disability) and / or specific needs (for example if they are Deaf and use British Sign Language) it is important to use a specialist assessor who has the skills to properly understand the adult’s care and support needs and their decision making abilities. This could be, for example, from a psychiatrist, psychologist, a speech and language therapist, occupational therapist or social worker. But the Mental Capacity Act Code of Practice (4.42) states that the final decision about an adult’s mental capacity must be made by the practitioner who is intending to make the decision or carry out the action on their behalf, not the specialist practitioner who has been consulted, who is there to advise.

3.3 Situations that fall outside the scope of the MCA

The person may lack the mental capacity to make the decision because they cannot use, retain, or weigh information (see, Stage 1) but they may not have an impairment or disturbance of the mind or brain (See Stage 2). This may happen if the person is being subject to ‘undue influence’ and is being intimidated, groomed or otherwise exploited.

Or both stages may be met, but the impairment/disturbance may not be the reason for the incapacity to make the decision. This can happen sometimes if the person’s mental health problems are difficult to understand, or they have a complex brain injury

In these cases further assessment may be needed e.g. by a specialist such as a neuropsychologist. Legal advice should also be obtained.

4. Recording

5. Making Decisions on behalf of someone who lacks Capacity

If, having taken all practical steps to support the adult to make their own decision, it is concluded that a decision should be made for them, that decision must be made in their best interests. It must also be considered whether there is another way of making the decision which might not affect the person’s rights and freedom of action as much (known as the ‘least restrictive alternative’ principle). See also Promoting Less Restrictive Practice: Reducing Restrictions Tool for Practitioners (ADASS and LGA).

5.1 Decision makers

Different people can make decisions or act on behalf of someone who lacks mental capacity. The person making the decision is known as the ‘decision maker’, and it is their responsibility to decide what would be in the person’s best interests.

For most day to day actions or decisions, the decision maker will be the carer most directly involved with the person at the time.

Where the decision involves the provision of medical treatment, the doctor or other member of healthcare staff responsible for carrying out the particular treatment or procedure is the decision maker.

Where nursing or paid care is provided, the nurse or paid carer will be the decision maker.

In some cases, the same person may make different types of decision for someone who lacks mental capacity. For example, a carer may carry out certain acts in caring for the person on a daily basis, but if they are also an attorney, appointed under a lasting power of attorney, they may also make specific decisions concerning the person’s property and financial affairs or health and welfare.

A decision may also, at times, be made jointly by a number of people. For example, when a care plan for a person who lacks capacity is being developed, different healthcare or social care staff might be involved in making decisions or recommendations about their care package.

Alternatively, the decision may be made by one practitioner within the team. A different member of the team may then implement that decision, based on what the team has decided to be in the person’s best interests. Practitioners need to ensure that someone is representing the adult, such as an independent mental capacity advocate (IMCA) or a relevant person’s representative (RPR).

All best interests decisions under the MCA should be made by consensus. If the parties cannot agree then steps should be taken to resolve the disagreement, e.g. re-assessing the person’s needs. If agreement cannot be reached then any public bodies involved will need to consider whether to apply to the Court of Protection

5.2 Lasting powers of attorney, court appointed deputy and the Office of the Public Guardian

A lasting power of attorney (LPA) allows an adult to appoint an attorney to act on their behalf if they should lose mental capacity in the future. LPAs are registered with the Office of the Public Guardian (OPG).

A court appointed deputy is appointed by the Court of Protection. Depending on the terms of their appointment, deputies can take decisions on welfare, healthcare and financial matters as authorised by the Court of Protection but they are not able to refuse consent to life sustaining treatment. Deputies are only appointed if the Court cannot make a one off decision to resolve the issues. The OPG supervises deputies appointed by the Court and provides information to help the Court make decisions.

Attorneys and deputies can be a member of the person’s family or a friend; it does not have to be a legal professional.

Holders of LPAs/deputyship are required to act in the best interests of the person they are supporting.

A person holding LPA or deputyship does not have any more authority than the person in whose interests they are acting. Specifically, someone with LPA/deputyship for health and welfare can refuse care and support on the person’s behalf, but they cannot insist that a particular treatment or form of support should be provided.

5.3 Independent mental capacity advocates

See Independent Mental Capacity Advocate Service chapter.

Independent Mental Capacity Advocates (IMCA) are appointed to support a person who lacks mental capacity but has no one to speak for them. IMCAs have to be involved where decisions are being made about serious medical treatment or a change in the adult’s accommodation where it is provided, or arranged, by the NHS or a local authority. The IMCA represents the person in relation to their wishes, feelings, beliefs and values, and brings to the attention of the decision maker all facts relevant to the case. IMCA services are provided by organisations that are independent of the NHS and local authorities.

5.4 Forward planning

6. Best Interests

See Best Interests chapter

The MCA sets out a checklist of things to consider when deciding what is in a person’s best interests. When making best interests decisions, practitioners should:

not make assumptions about an adult based on their age, appearance, condition or behaviour;
consider all the relevant circumstances;
consider whether or when the person has the mental capacity to make the decision;
support the person’s participation in any acts or decisions made for them;
not make a decision about life sustaining treatment motivated by a desire to bring about the person’s death;
consider the person’s expressed wishes and feelings, beliefs and values;
take into account the views of others with an interest in the person’s welfare, their carers and those appointed to act on their behalf.

7. Excluded Decisions

Certain decisions can never be made on behalf of a person who mental lacks capacity to make those specific decisions. This is because they are either so personal to the individual concerned, or they are governed by other legislation.

7.1 Decisions concerning family relationships

Nothing in the MCA allows a decision to be made on someone else’s behalf in relation to:

consenting to marriage or a civil partnership;
consenting to have sexual relations;
consenting to a decree of divorce on the basis of two years’ separation;
consenting to the dissolution of a civil partnership;
consenting to a child being placed for adoption or the making of an adoption order;
discharging parental responsibility for a child in matters not relating to the child’s property; or
giving consent under the Human Fertilisation and Embryology Act 1990;
decisions around contact with others, including restricting the use of social media, telephone calls and who can visit the adult.

7.2 Mental Health Act matters

Where a person who lacks mental capacity to consent is currently detained and being treated under the Mental Health Act 1983, the MCA does not authorise anyone to:

give them treatment for mental disorder; or
consent them being given treatment for mental disorder.

7.3 Voting rights

Nothing allows a decision on voting – at an election for any public office or at a referendum – to be made on behalf of a person who lacks capacity to vote. Everyone has the right to vote, irrespective of their mental capacity to make other decisions.