Mental capacity and best interests

A person must be assumed to have mental capacity to make their own decisions. If someone has a dementia diagnosis, this does not necessarily mean that they cannot continue to make their own decisions.

You cannot make decisions on their behalf, until there has been an assessment of their capacity to make decisions.

All practical steps must be taken to help someone make a decision for themselves.

It’s important to remember that an unwise decision, or a decision that you might not agree with, does not necessarily indicate a lack of capacity.

Mental capacity is assessed in relation to specific decisions. It may be that a person with dementia can make some decisions but not others. For example, they may be able to choose what to eat for breakfast, but not where they should live.

You might start to wonder if someone has capacity to make decisions if you’re observing someone perhaps not understanding what you are saying. Or it may seem like someone is unable to weigh up pros and cons of a decision. Or someone may be forgetting that a decision has already been made.

To assess whether someone has capacity or not, the following questions need to be asked:

This could be a dementia, learning disability, brain injury, influence of alcohol or drugs or other impairment.  If there is no impairment, then they do not lack capacity.

• Understand the information relevant to the decision? (whether by talking, using sign language or any other means)
• Retain that information for long enough to weigh it up?
• Understand the consequences of making or not making the decision?
• Communicate their decision? (whether by talking, using sign language or any other means)

If the answer is “no” to one or more of these, then the person does not have capacity to make the decision.

There is no one particular person whose job it is to decide whether a person has capacity to make a decision. It might be a family carer or a hospital team. However, for each decision, all of these questions need to be asked.  

For big decisions, a mental capacity assessment is likely to be carried out by a mental health professional.

If someone has been assessed as lacking mental capacity to make a decision, other people can make a decision for them. However, decisions must be made in their best interests.

If the person has already set up a lasting power of attorney, then whoever has been given power of attorney can make decisions for the person.

Lasting power of attorney can only be set up while someone still has mental capacity to appoint one or more attorneys.

To make a decision in someone’s best interests you should:

• Involve the person as much as possible
• Find out the person’s wishes and feelings
• Consult people who know the person well
• Consider all relevant information
• Avoid or delay making the decision if it is likely that the person might regain capacity
• Think about what would be the least restrictive option

Sometimes health and social care professionals will meet the person who lacks capacity and/or their family members. Sometimes a meeting might include an advocate for the person who lacks capacity. These are called Best Interest Meetings.  In these circumstances, the reasons for the decisions made must be documented. 

When someone who lacks mental capacity is in a hospital or care home, there may be some restrictions on their liberty such as:

• keypad door locks
• cot sides
• certain medications such as those causing drowsiness

There are protections in place for people in residential settings, who lack mental capacity to object to a restriction.

The hospital or care home must apply to the supervisory body (usually the local adult social care authority) for “standard authorisation” if they intend to put a restriction in place.

The supervisory body must scrutinise the planned restriction of liberty to ensure that it is in the best interests of the person and is the least restrictive option

Urgent authorisation can be applied for 7 days if there is an immediate need for a restriction to be in place before standard authorisation has been obtained

When someone is unable to speak up for themselves and assert their rights – because of lacking mental capacity or some other vulnerability – it is important that there is someone who can do it for them or assist them to do it for themselves. Often it will be a friend or family member who supports a person in this way.

There is a duty to consult people with an interest in the person’s welfare. A relevant person’s representative/ appropriate person is appointed. If you’re appointed to this role, you are responsible for representing and supporting the person whose liberties are being restricted.

This may mean raising concerns, making a complaint or making an application to the Court of Protection.

If you are appointed as someone’s representative, you should be given information about your rights and responsibilities.

Sometimes there is no one who can do this informal advocacy. This may be because:

• the person does not have family or friends
• those who would be able to do it are in dispute with health or social care practitioners or other members of the family

By law, a vulnerable person is entitled to a paid, trained advocate if they need help. The person does not have to pay; the service is free to those who are eligible for it.

If you are appointed as someone’s representative, you are entitled to advocacy support from an Independent Mental Capacity Advocate (IMCA).

An IMCA can support someone who has been assessed as lacking mental capacity to make a certain decision. This might be whether to start or change serious medical treatment or where someone will live. 

They find out as much as possible about the views of the person. They can meet the person privately and see their health and care records. 

After considering all relevant information they may write a report to help decision-makers reach decisions in the person’s best interests. They may attend a best interest meeting.

An IMHA can help someone detained under the Mental Health Act to understand:

• their rights under the Mental Health Act
• how to appeal a detention

They can help prepare for meetings and give support in meetings. They can talk with staff to raise queries and represent views.

Carers have a right to an advocate if they have “substantial difficulty” in being involved in their own assessment. 

Each local authority will have its own arrangements for providing advocacy, but it must be independent of the decision-makers. An example of an independent organisation which provides advocacy services to many local authority areas is POhWER.