Presumption of Capacity

Presumption of Capacity
Presumption of Capacity
Full Overview Of Presumption of Capacity

The principle of presumption of capacity is a cornerstone of legal and ethical frameworks, particularly in the context of mental health and decision-making.

At its core, this principle asserts that every adult has the capacity to make their own decisions unless proven otherwise. This presumption upholds individual autonomy and dignity, ensuring that people are not unjustly deprived of their rights to make decisions about their own lives.

As legal professionals at DLS Solicitors, understanding and applying the presumption of capacity is vital to protecting the rights and interests of our clients.

Legal Foundations

The Mental Capacity Act 2005 (MCA) in England and Wales enshrined the presumption of capacity. This act provides a comprehensive legal framework for assessing and addressing mental capacity issues, and the presumption of capacity is one of its five key principles. The MCA emphasises that:

  1. Every adult is presumed to have capacity unless it is established that they lack it.
  2. Capacity is decision-specific, meaning a person may have the capacity to make some decisions but not others.
  3. Capacity assessments must be conducted fairly, with all practicable steps taken to help individuals make their own decisions before concluding that they lack capacity.

Importance of Presumption of Capacity

Upholding Autonomy and Dignity

The presumption of capacity is fundamental in respecting and upholding the autonomy and dignity of individuals. By assuming capacity, society acknowledges that every person has the right to control their own life and make their own choices. This approach prevents paternalism and ensures that individuals are not treated as incapable merely because they make decisions that others might perceive as unwise.

Legal and Ethical Considerations

Legally, the presumption of capacity aligns with human rights principles, particularly the right to respect for private and family life under Article 8 of the European Convention on Human Rights. Ethically, it promotes fairness and justice, ensuring that individuals are not unfairly deprived of their decision-making rights.

Practical Implications

In practice, the presumption of capacity requires professionals, caregivers, and family members to approach decision-making with an open mind. It demands thorough assessments and support for individuals to make their own decisions wherever possible. This principle also guides the development of organisational policies and procedures, ensuring that capacity issues are handled appropriately.

Assessing Capacity

Assessing capacity involves determining whether an individual can make a specific decision at a particular time. The MCA outlines a two-stage test for this purpose:

Diagnostic Test

The first stage is to establish whether there is an impairment or disturbance in the mind or brain functioning. This could be due to conditions such as dementia, learning disabilities, mental health disorders, or brain injuries.

Functional Test

The second stage assesses whether the impairment or disturbance affects the person’s ability to make a specific decision. To have capacity, an individual must be able to:

  • Understand the information relevant to the decision.
  • Retain that information long enough to make the decision.
  • Use or weigh that information as part of the decision-making process.
  • Communicate their decision by any means.

If an individual fails any part of this functional test due to an impairment or disturbance, they are considered to lack capacity for that specific decision.

Supporting Decision-Making

The presumption of capacity obliges professionals to support individuals in making their own decisions as much as possible. This support can take various forms:

Providing Information

It is crucial to ensure the individual has all the relevant information in a format they can understand. This might involve using simple language, visual aids, or translators.

Allowing Time

Some individuals may need more time to process information and make decisions. Giving them sufficient time and not rushing the decision-making process is essential.

Seeking Expert Advice

In complex cases, seeking the advice of medical professionals, psychologists, or other experts can help assess capacity and provide appropriate support.

Involving Family and Friends

Family members and friends can play a significant role in supporting individuals in making decisions. They can provide emotional support, help explain information, and ensure that the person’s wishes and preferences are respected.

Legal Instruments and Safeguards

Several legal instruments and safeguards are in place to protect individuals who may lack capacity.

Lasting Power of Attorney (LPA)

An LPA allows an individual to appoint someone they trust to make decisions on their behalf if they lose capacity in the future. There are two types of LPA:

  • Property and Financial Affairs LPA: Covers decisions about finances and property.
  • Health and Welfare LPA: Covers decisions about healthcare and personal welfare.

Court of Protection

The Court of Protection makes decisions on financial or welfare matters for individuals who lack capacity. It can also appoint deputies to make ongoing decisions.


Deputies are appointed by the Court of Protection to make decisions on behalf of people who lack capacity. Their role is similar to that of an attorney under an LPA but is typically used when no LPA is in place.

Independent Mental Capacity Advocate (IMCA)

An IMCA is appointed to support individuals who lack capacity and have no family or friends to advocate for them. The IMCA ensures that the person’s rights are upheld and their best interests are considered.

Challenges and Considerations

Ethical Dilemmas

Balancing the presumption of capacity with the need to protect vulnerable individuals can be challenging. Ethical dilemmas arise when there is a conflict between respecting autonomy and ensuring safety and well-being. Professionals must navigate these dilemmas carefully, always prioritising the individual’s best interests.

Cultural Sensitivity

Capacity assessments and support must be culturally sensitive. Understanding and respecting cultural differences in communication, decision-making, and family dynamics is essential to providing appropriate support.

Fluctuating Capacity

Some individuals may have fluctuating capacity, where their decision-making ability changes over time. This requires continuous assessment and flexible support strategies to adapt to the individual’s changing needs.

Legal and Professional Responsibilities

Professionals have a legal duty to comply with the MCA and ensure that capacity assessments and decisions are conducted lawfully and ethically. Regular training and staying updated with legal developments are crucial to fulfilling these responsibilities effectively.

Best Practices

Comprehensive Training

It is essential to provide comprehensive training for professionals involved in capacity assessments and decision-making. Training should cover the legal framework, ethical considerations, and practical skills needed to support individuals effectively.

Person-Centred Approach

Adopting a person-centred approach ensures that the individual’s preferences, values, and rights are at the forefront of all decisions. This involves actively engaging the person in decision-making and respecting their wishes wherever possible.

Clear Documentation

Accurate and clear documentation of capacity assessments, decisions, and the rationale behind those decisions is crucial. Good documentation provides transparency, accountability, and evidence of compliance with legal requirements.

Multi-Disciplinary Collaboration

Collaboration among healthcare professionals, social workers, legal advisors, and family members ensures a holistic approach to capacity issues. Multi-disciplinary teams can provide comprehensive support and make well-informed decisions.

Regular Reviews

Regular reviews of the individual’s capacity and the decisions made on their behalf are necessary. Circumstances and conditions can change, and continuous monitoring ensures that decisions remain in the individual’s best interests.

Case Studies

Financial Decision-Making

Mr. Green, an elderly man with early-stage dementia, was having difficulty managing his finances. After an assessment of his capacity to make financial decisions, it was determined that he could still make decisions with the right support. His family stepped in to help him understand financial statements and manage his budget, ensuring that he was able to stay in control of his finances.

Healthcare Decisions

Mrs. White, who has been diagnosed with schizophrenia, had to decide whether to undergo a complex medical procedure. Her healthcare team provided detailed information in a format that she could understand and allowed her enough time to consider her options. With this support, she could make an informed decision about her treatment.

Learning Disabilities

Tom, a young man with learning disabilities, expressed the desire to move into supported living accommodation. A capacity assessment was conducted, which determined that he had the ability to make this decision with support. Social workers and family members provided the necessary assistance to help Tom comprehend the implications and accompanied him on visits to potential accommodations. Tom actively participated in the decision-making process, ultimately selecting a place that aligned with his needs and preferences.


The presumption of capacity is a fundamental principle that upholds individuals’ autonomy, dignity, and rights. At DLS Solicitors, we recognise the importance of this principle in protecting our clients and ensuring that they are not unjustly deprived of their decision-making rights. Understanding the legal framework, ethical considerations, and best practices associated with the presumption of capacity is crucial to providing practical support and advocacy.

By adopting a person-centred approach, fostering multidisciplinary collaboration, and ensuring regular reviews and clear documentation, we can uphold the presumption of capacity and support individuals in making their own decisions. Continuous education and training for professionals are essential to maintaining high standards of practice and ensuring compliance with legal and ethical obligations.

In navigating the challenges associated with capacity issues, it is our responsibility to balance the need for protection with respect for autonomy, always striving to act in the best interests of those we serve. The presumption of capacity is not just a legal requirement; it reflects our commitment to dignity and rights of every individual.

Presumption of Capacity FAQ'S

The presumption of capacity is a legal principle that assumes all adults have the mental capacity to make their own decisions unless proven otherwise. It is a foundational concept in the Mental Capacity Act 2005.

The presumption of capacity protects individuals’ rights to make their own decisions and ensures they are not unfairly deemed incapable without evidence. It promotes autonomy and dignity.

Capacity is assessed based on the ability to understand, retain, and weigh relevant information to make a decision, and to communicate that decision. This assessment is decision-specific and time-specific.

Mental capacity can be assessed by various professionals, including doctors, solicitors, social workers, and caregivers, depending on the context of the decision. In complex cases, a specialist assessment may be required.

If a person is found to lack capacity, decisions can be made on their behalf in their best interests. This can be done by a legally appointed deputy, attorney under a Lasting Power of Attorney, or a decision-maker following the best interests checklist in the Mental Capacity Act.

Yes, the presumption of capacity can be challenged if there is evidence to suggest that an individual lacks the capacity to make a specific decision. An assessment must then be carried out to determine their capacity.

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

Individuals have the right to be supported in making their own decisions as much as possible, the right to a fair assessment, and the right to challenge decisions about their capacity in court. They are also entitled to have their past and present wishes considered.

The Mental Capacity Act 2005 provides a legal framework for acting and making decisions on behalf of individuals who lack capacity. It includes principles to support decision-making, a process for assessing capacity, and safeguards to protect individuals’ rights.

Common misconceptions include believing that capacity is an all-or-nothing state (it is decision-specific), assuming that a diagnosis of a mental illness or dementia automatically means lack of capacity, and not recognising the importance of providing support to help individuals make their own decisions.


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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