What does mental capacity mean?
Mental capacity is the ability to make a specific decision at the time it needs to be made. The decision can concern anything, from the ability to choose what to buy during the weekly shop, to paying bills and managing finances.
A person lacks mental capacity when they lose the ability to make decisions. This could be short-term incapacity – for example, if the affected individual is temporarily loses consciousness after a head injury – or long-term incapacity, for example, if the individual has sustained permanent brain damage. Capacity can fluctuate. It can also depend on the decision which needs making. For example, a person may be able to choose if they want to make a brain injury compensation claim but can’t make decisions about money.
A person who lacks mental capacity may be unable to:
- Sign important legal documents
- Sell property
- Make a valid Will
- Care for themselves or go about day-to-day activities
- Consent to or refuse medical treatment
The Mental Capacity Act 2005 (the MCA) is in place to protect and support people who lack mental capacity and their loved ones. Under the Act, all people aged 16 or over are assumed have mental capacity unless an assessment proves otherwise. The MCA also states:
- You should help the affected individual make their own decision wherever possible
- An “unwise” decision does not necessarily mean a person lacks mental capacity
- All decisions made on behalf of an affected individual should be in their best interests
- Any care and medical treatment provided to someone lacking mental capacity should be the least restrictive to their rights and liberty
Mental capacity assessments
Under the MCA, mental incapacity can be assessed using a 2 stage test:
- The affected individual must have an impairment of the mind or brain, for example, as the result of a brain injury which can produce cognitive, behavioural, and emotional issues
- The impairment must make the affected individual unable to make a specific decision when they need to make it
A person cannot make a decision where:
- They don’t understand the information needed to make the decision or what making the decision means
- They cannot retain information to make the decision
- They cannot weigh up information to come to an informed decision
- They cannot communicate their decision
Helping people make decisions
Before deciding whether someone lacks mental capacity, they should be helped to make the decision themselves wherever possible. For example, by:
- Presenting information in a different way such as using visual aids
- Ensuring the affected individual has all the information they need
- Providing alternative options for them to consider
- Exploring alternative communication methods such as using signs or non-verbal cues
- Inviting other family and friends to help communicate with the affected individual
- Ensuring the affected individual is in a location where they feel comfortable and safe
- Delaying the decision until the person is able to make it themselves
Making decisions in someone’s “best interests”
If a person lacking mental capacity cannot make their own decision even with assistance, it may be necessary to make a decision on their behalf.
Under the MCA, all decisions should be made in the incapacitated person’s best interests. This includes:
- Encouraging them to take part in the decision-making process as much as possible
- Considering the factors they would have taken into account if they were making the decision themselves
- Thinking about their wishes, beliefs, and values prior to their loss of mental capacity
- Talking to their family, friends, Attorney (under a Lasting Power of Attorney or Enduring Power of Attorney), and care team about the person’s wishes, beliefs, and values
- Avoiding discrimination – don’t make a decision based on the person’s age, behaviour, or appearance
Deprivation of Liberty
Liberty is a human right so it’s very important that a decision made on behalf of someone else interferes with their freedom as little as possible. Where a decision is made, it should be the “least restrictive” option.
Sometimes it may be necessary for someone (generally a care home or hospital) to make decisions which restrict or control a person’s activities and movements. However, they must apply to their local authority for authorisation under the Deprivation of Liberty Safeguards.
If Deprivation of Liberty is not approved, any restrictions or control on the person will be unlawful and can be challenged in the Court of Protection.
Our mental capacity solicitors understand it’s a daunting task to weigh up the advantages and disadvantages of making a specific decision for someone without interfering with their human rights. We can provide guidance on decision making, including finding the least restrictive option.
The Court of Protection
The Court of Protection was created to protect and support individuals who lack mental capacity and their loved ones. The Court can make decisions on behalf of incapacitated individuals; it can also authorise their family and friends to make decisions on their behalf.
We can help you make all types of application to the Court of Protection, including:
- Deputyship applications – Court of Protection Deputies are authorised to make decisions about care, medical treatment, and welfare and/or financial affairs and property
- Statutory Wills – where a person lacks mental capacity, they will likely be unable to make a valid Will (called lacking testamentary capacity). The Court of Protection can therefore make a Will on their behalf to prevent the incapacitated individual dying intestate (and their money and property being distributed against their wishes)
- Selling jointly owned property – because people lacking mental capacity often cannot sign legal documents, they will likely be unable to consent to the sale or equity transfer of any property you jointly own with them. The Court of Protection can therefore appoint someone to consent to the sale or transfer on their behalf
- Deprivation of Liberty orders and challenges – the Court of Protection can authorise Deprivation of Liberty where the incapacitated person does not live in a care home or hospital. You can also apply to challenge Deprivation of Liberty authorisations
Applications to the Court of Protection are complex, requiring a number of forms including expert evidence to support the mental capacity assessment. Our skilled solicitors have considerable experience making these applications on clients’ behalf and can explain how the process works in clear, understandable English.
For further information, please visit our Court of Protection Solicitors page.
Why choose IBB Claims’ mental capacity solicitors?
At IBB Claims we specialise in helping clients who have been received a personal injury as a result of the negligence or intentional actions of someone else.
We provide a full solution service covering compensation claims, rehabilitation guidance, and ongoing support and advice, including advising on mental capacity and Court of Protection applications. Every brain injury is unique, so we’ll work closely with you to fully establish your needs and the best ways to support you and/or a loved one.
Amongst our specialist team we have Malcolm Underhill who has been recognised as an Accredited Brain Injury Specialist by the Association of Personal Injury Lawyers. He and Simon Pimlott are both members of Headway the Brain Injury Association and have completed academic study into brain injuries and their consequences with Headway in partnership with Northampton University.
You can therefore trust that your case will be dealt with professionally and sensitively by someone with true understanding of the far-reaching effects brain injury can have on your life.
Get in touch with our mental capacity solicitors
To speak to one of our head and brain injury solicitors, give us a call at our offices, email us at email@example.com, or fill in the enquiry form at the top of the page.