Mental Capacity

Mental Capacity
Mental Capacity
Full Overview Of Mental Capacity

Mental capacity is a crucial concept in law, especially in healthcare, social care, and financial management. It refers to an individual’s ability to make decisions for themselves and is vital for respecting their rights and autonomy while providing necessary protections for vulnerable individuals.

At DLS Solicitors, we fully understand the complex nature of mental capacity issues and their significant impact on individuals and their families. This comprehensive overview aims to clarify the concept of mental capacity, the legal framework governing it, and its practical implications.

Definition and Importance of Mental Capacity

Mental capacity is the ability to make a specific decision at a given time. This involves understanding the relevant information, retaining it, using or weighing it in the decision-making process, and communicating the decision. Mental capacity is important for safeguarding individual autonomy and ensuring that decisions are made in the best interests of those who may lack capacity.

In legal terms, mental capacity is a functional assessment that varies depending on the nature and complexity of the decision to be made. An individual may have the capacity to make some decisions but not others. For instance, a person might be capable of deciding what to wear or eat but be unable to manage their financial affairs or consent to medical treatment.

Legal Framework Governing Mental Capacity

The Mental Capacity Act 2005 (MCA) provides the statutory framework for assessing mental capacity and making decisions for those lacking capacity in England and Wales. The Act is underpinned by five key principles:

  1. Presumption of Capacity: Every adult has the right to make their own decisions and must be assumed to have capacity unless proven otherwise.
  2. Right to Make Unwise Decisions: Individuals have the right to make decisions that others might consider unwise or eccentric. This principle recognises personal autonomy and freedom.
  3. Individuals Must Be Supported to Make Decisions: Before concluding that a person lacks capacity, all practicable steps must be taken to help them make their own decisions.
  4. Best Interests: Any decision made on behalf of a person who lacks capacity must be in their best interests.
  5. Least Restrictive Option: Any decision made on behalf of a person who lacks capacity should be the least restrictive of their rights and freedoms.

Assessing Mental Capacity

The process of assessing mental capacity involves a two-stage test:

  1. Diagnostic Test: This stage determines whether the person has an impairment of, or a disturbance in the functioning of, the mind or brain. This could be due to a variety of conditions, including dementia, mental illness, learning disabilities, brain injury, or intoxication.
  2. Functional Test: If the diagnostic test is met, the second stage assesses whether the impairment or disturbance means the person cannot make a specific decision when needed. This involves checking if the person can understand, retain, use or weigh the relevant information and communicate their decision.

It’s important to note that capacity can fluctuate, and assessments should be decision-specific and time-specific. For example, a person with fluctuating mental health conditions might be able to make certain decisions at times when their condition is stable but not during periods of crisis.

Best Interests Decision-Making

When a person is deemed to lack capacity, any decision made on their behalf must be in their best interests. The MCA outlines a checklist of factors to consider when determining best interests:

  1. Involvement of the Person: Wherever possible, the person should be encouraged and supported to participate in the decision-making process.
  2. Consideration of Past and Present Wishes: The individual’s past and present wishes, feelings, beliefs, and values should be considered.
  3. Consultation with Others: Family members, friends, and other relevant parties interested in the person’s welfare should be consulted.
  4. Least Restrictive Option: Consideration should be given to whether the proposed action is the least restrictive option available.

Lasting Powers of Attorney and Deputyship

To provide individuals with the ability to plan for a future loss of capacity, the MCA introduced Lasting Powers of Attorney (LPA). An LPA allows a person (the donor) to appoint one or more trusted individuals (attorneys) to make decisions on their behalf if they lose capacity. There are two types of LPA:

  1. Property and Financial Affairs LPA: This grants the attorney authority to make decisions about the donor’s financial matters, such as managing bank accounts, paying bills, and selling property.
  2. Health and Welfare LPA: This type of LPA grants the attorney authority to make decisions about the donor’s personal health and welfare, including medical treatment and living arrangements. It can only be used when the donor lacks the capacity to make specific decisions.

In cases where no LPA is in place, and a person lacks capacity, the Court of Protection can appoint a deputy to make decisions on behalf of the individual. Deputies are usually close relatives or friends, but professional deputies can also be appointed. Deputies must act in the best interests of the person and follow the principles of the MCA.

Safeguarding and Deprivation of Liberty Safeguards (DoLS)

The MCA also includes provisions for safeguarding individuals who lack capacity, particularly in relation to their liberty. The Deprivation of Liberty Safeguards (DoLS) were introduced to ensure that individuals who lack capacity and are deprived of their liberty in care homes or hospitals are protected and that any deprivation is lawful, necessary, and proportionate.

A deprivation of liberty occurs when a person is under continuous supervision and control and is not free to leave, and the person lacks the capacity to consent to these arrangements. DoLS requires that such deprivation be authorised following an independent assessment process, which includes:

  1. Age Assessment: The person must be 18 years of age or older.
  2. Mental Health Assessment: The person must have a mental disorder.
  3. Mental Capacity Assessment: The person must lack the capacity to consent to the arrangements.
  4. Best Interests Assessment: The deprivation of liberty must be in the person’s best interests and necessary to prevent harm.
  5. Eligibility Assessment: The person must not be subject to certain other legal frameworks, such as the Mental Health Act of 1983.
  6. No Refusals Assessment: The deprivation of liberty must not conflict with any valid advance decision or LPA.

Practical Implications and Challenges

Navigating mental capacity issues presents several practical implications and challenges for individuals, families, and professionals. Some of the key considerations include:

  1. Complexity of Assessments: Conducting mental capacity assessments requires skill and expertise. It is essential that assessors are adequately trained and understand the legal and ethical principles involved.
  2. Fluctuating Capacity: As capacity can change over time, ongoing assessments may be necessary. This is particularly relevant for individuals with conditions that cause episodic impairment.
  3. Balancing Autonomy and Protection: Ensuring that individuals’ rights and autonomy are respected while providing necessary protections can be challenging. Decisions must be carefully balanced to avoid unnecessary restrictions.
  4. Family Dynamics: Mental capacity issues can strain family relationships, particularly when there are disagreements about the best interests of the person. Mediation and legal advice can be crucial in resolving conflicts.
  5. Legal and Ethical Considerations: Professionals must navigate complex legal and ethical considerations when dealing with mental capacity issues. This includes ensuring compliance with the MCA, maintaining confidentiality, and upholding professional standards.

Role of Legal Representation

Given the complexities involved in mental capacity issues, having experienced legal representation is invaluable. At DLS Solicitors, we provide expert guidance and support to individuals and families facing these challenges. Our services include:

  1. Advising on Lasting Powers of Attorney: We assist clients in preparing and registering LPAs, ensuring that their wishes are respected and that trusted individuals are appointed to make decisions on their behalf.
  2. Court of Protection Applications: We represent clients in applications to the Court of Protection , including appointing deputies and decisions relating to health, welfare, and financial matters.
  3. Mental Capacity Assessments: We advise on conducting and challenging mental capacity assessments, ensuring that the process is fair, thorough, and compliant with the MCA.
  4. Dispute Resolution: We help resolve disputes between family members or between individuals and professionals using negotiation, mediation, and, where necessary, litigation.
  5. Safeguarding and DoLS: We advise on safeguarding issues and represent clients in matters related to DoLS, ensuring that any deprivation of liberty is lawful and in the person’s best interests.


Mental capacity is a crucial aspect of the law that impacts various areas of life, including healthcare, social care, financial management, and personal welfare. The Mental Capacity Act 2005 establishes a strong framework for evaluating capacity and making decisions for individuals who lack it, ensuring their rights and interests are safeguarded. Handling the complexities of mental capacity issues requires careful consideration, expertise, and sensitivity.

At DLS Solicitors, we are dedicated to offering comprehensive legal support and guidance to individuals and families dealing with mental capacity matters. Our client-centred approach prioritises protecting individual autonomy while ensuring that vulnerable individuals receive the necessary support. By comprehending the nuances of mental capacity law and keeping up with legal changes, we aim to achieve the best possible outcomes for our clients, promoting their well-being and upholding their rights.

Mental Capacity FAQ'S

Mental capacity refers to a person’s ability to make their own decisions. It involves understanding, retaining, and weighing up relevant information and being able to communicate the decision.

The Mental Capacity Act 2005 governs mental capacity in the UK. It provides the legal framework for assessing capacity and making decisions on behalf of those who lack capacity.

Mental capacity is assessed based on a specific decision at a specific time. The assessment involves determining whether the person can understand, retain, and weigh the relevant information and communicate their decision.

Mental capacity can be assessed by various professionals, including doctors, social workers, psychologists, and care workers, depending on the complexity of the decision and the context in which it is being made.

If someone lacks mental capacity, decisions can be made on their behalf by an appointed attorney under a Lasting Power of Attorney, a court-appointed deputy, or, according to the principles of the Mental Capacity Act, always in the person’s best interests.

A Lasting Power of Attorney is a legal document that allows a person (the donor) to appoint one or more people (attorneys) to make decisions on their behalf if they lose mental capacity. There are two types of LPA: one for health and welfare and one for property and financial affairs.

The Court of Protection makes decisions on financial and welfare matters for individuals who lack mental capacity. It can appoint deputies, make declarations about a person’s capacity, and resolve disputes regarding the person’s best interests.

Yes, mental capacity can fluctuate, and a person may regain capacity if their condition improves or with appropriate support. Capacity assessments should be specific to the decision and time, recognising that capacity can change.

The principles are:

  1. Presumption of capacity: assume capacity unless proven otherwise.
  2. Right to make unwise decisions: having capacity includes making decisions others might see as unwise.
  3. Individuals should not be treated as incapable without all practicable steps taken to help them.
  4. Decisions must be made in the individual’s best interests.
  5. Any decision made should be the least restrictive option available.

Individuals who lack mental capacity have the right to be involved in decisions about their lives as much as possible, to have their past and present wishes considered, to receive care and treatment in their best interests, and to have a representative or advocate if necessary.


This site contains general legal information but does not constitute professional legal advice for your particular situation. Persuing this glossary does not create an attorney-client or legal adviser relationship. If you have specific questions, please consult a qualified attorney licensed in your jurisdiction.

This glossary post was last updated: 11th July 2024.

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Our team of professionals are based in Alderley Edge, Cheshire. We offer clear, specialist legal advice in all matters relating to Family Law, Wills, Trusts, Probate, Lasting Power of Attorney and Court of Protection.

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