Devon County Council

Chapter 4 Code of Practice; MCA ss2-3.

Case examples: how to assess capacity

What is capacity?

The MCA defines a lack of capacity by saying:

• ‘a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.’ (MCA s2(1); Code of Practice 4.3).
• This statement makes clear that capacity relates to a particular decision at a particular time. In the past, someone’s ‘capacity’ was assessed in an overarching way and a general statement was made that ‘Mrs X lacks capacity’ – and then all decisions were made for Mrs X. The MCA makes this practice illegal.

The test:

The MCA introduces a two step process of assessing someone’s capacity.

Step 1: The diagnostic test:

The first step is known as the ‘diagnostic test’. However no diagnosis is needed, merely some evidence that the person is suffering from: ‘an impairment of, or a disturbance in the functioning of, the mind or brain.’

This is a very wide gateway. It would include:

• any form of learning disability
• any form of mental illness, including dementia
• any form of brain injury, including stroke damage
• any form of neurological damage,
• any form of intoxication – from chronic drug use to a couple of glasses of wine
• any temporary confusional state caused by infection, illness, tiredness, pain etc. (Code of Practice 4.12)

Most people at some time will be covered by this ‘diagnostic test’ and some people will always come within it. This does not necessarily mean that they lack capacity to make a particular decision at a particular point in time.

Step 2: The decision specific functional test

• This test considers whether the person can make this decision at this time.
• This is because you need different understanding to make different decisions. For instance, you may not have capacity to manage your money, but you may be able to make a decision about your medical treatment and you may not be able to make a decision about where you live but you may be able to decide how you spend your time.
• The first step of the functional test is to be clear what the decision is that needs to be made. If there is a complex situation there may need to be several capacity assessments concerning different decisions.
• The assessor then needs to establish if the person can:
• Understand the information relevant to the decision
• Retain information relevant to the decision
• Use or weigh the information as part of the process of making the decision
• Communicate their decision

(MCA s3; Code of Practice 4.14)

If the person is unable to do any one of these 4 things, they lack capacity to make this decision at this time.

• The person only needs to be able to retain information long enough to use it to make the decision – there isn’t a requirement of longer term memory.
• To be able to use or weigh the information someone needs to be able to consider conflicting information e.g. I’ve always wanted to stay in my own home, but if I fall I might be on the floor all night before anyone finds me. They have to be able to understand the risks and consider the consequences of their decision
• The ability to communicate the decision is by any means – sign language, body language etc would be acceptable.

(Code of Practice 4.15-25)

When to assess – may the person regain capacity?

If someone may recover their capacity – if for instance they may lack capacity because of an infection causing confusion - then the decision should wait, if it can. Some decisions cannot wait e.g. a decision about the medical treatment that might enable someone to regain their capacity. However, if at all possible, decisions should be delayed until the person has the best chance of making their own decision. (Code of Practice 4.27; 5.25-5.27)

Your duty to enable someone to make their own decision

Follow Principle 2: ‘a person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.’

It is your responsibility to do everything you can to give the individual the best chance of being able to make their own decision.

• Make sure you are clear about the decision.
• Make sure you are clear about the information the person needs to understand and to weigh.
• Make sure you are able to communicate this information in a way which will most likely enable the person to understand.
• How is this person best able to communicate – do you need an interpreter or help from the audiology department or speech and language therapist or other specialist?
• Consider the best time of day to undertake the assessment.
• Consider the location.
• Should someone be with the person? for instance a family member may help them to feel more comfortable or may inhibit what they say.

(Code of Practice chapter 2)