Mental Capacity

Mental Capacity is 'decision specific and time specific': can the person make this decision at this time?

5 Key Principles

  • Presume capacity unless tbere is evidence otherwise;
  • Do all you can to maximise a person's capacity;
  • Unwise or eccentric decisions don't of themselves prove lack of capacity;
  • If you are making a decision for or about someone lacking capacity, always act in the best interests of the person;
  • In making a best intest decision, seek the least restrictive option that will meet the person's needs.

Assessing Capacity

Two Stage Test

Ask yourself:

Does the person have an impairment of the mind or brain, or is there some sort of disturbance affecting the way their mind or brain works, either on a temporary or a permanent basis?

If so, does that impairment or disturbance mean that the person is unable to make the decision in question at the time that it needs to be made?

More information is available at

Four-Step Approach

A person has capacity to make a particular decision only if they can carry out all four of these steps:

  1. understand appropriately-presented information about that decision;
  2. retain the information for long enough to
  3. use and weigh it to make a decision and
  4. communicate the decision by any recognisable means.

Best Interests Checklist

Just incase you forget!

  • Is there a relevant substitute decision maker (LPA/ EPA Attorney, Court-Appointed Deputy)?
  • Is there a valid and applicable Advanced Decision to refuse treatment?
  • Assess whether the person might regain capacity: and if so, can the decision wait?
  • Involve the person in the decision as much as possible.
  • Explore the person's past and present views, culture, religion, and attitudes.
  • Do not make assumptions base on a person's age, condition, appearance, or behaviour.
  • Consult interested family and friends.
  • Try to find the least restrictive options that meets the needs.