What is having mental capacity?
Having mental capacity is the ability to make a decision, whether it is an everyday decision such as what to wear, or a more important decision such as choosing where to live.
You might lack capacity, for example, if you have:
- dementia
- a stroke
- severe brain injury.
The Mental Capacity Act (NI) 2016 applies to Northern Ireland today.
Amongst other principles, it provides the legal framework for making decisions on behalf of people who are over the age of 16 and lack the mental capacity to make decisions themselves. Only some parts of this law have been put in place. You can read more about it here.
There is also a Mental Capacity Act Code of Practice which explains the Act and its safeguards in detail.
In Northern Ireland, a court law test is followed, assessing:
- ‘Can the patient understand and retain information about their treatment?’
- ‘Does the patient believe that information?’
- ‘Can the patient weigh up that information, balancing risks and needs, to arrive at a decision?’
A professional (such as a qualified doctor, nurse, midwife, social worker, occupational therapist, speech and language therapist, dentist or practitioner psychologist with at least two years of experience) can undertake a mental capacity assessment. They must also have undertaken training approved by the Department of Health.
It is important to note that the legislation sets out that a person is not to be treated as unable to make a decision for themselves unless all practicable help and support to enable the person to make the decision has been given without success.
It also states that a person is not to be treated as lacking capacity to make a decision simply because they make what others consider to be an unwise decision.
The assessment must focus on a particular time when a decision has to be made and on the particular matter to which the decision relates. It is not an assessment of a person’s ability to make decisions generally. A person may lack capacity in relation to one matter but not in relation to another matter.
A person is deemed unable to make a decision if, at the time, they cannot:
- understand information about the decision to be made
- retain that information in their mind
- use or weigh that information as part of the decision-making process
- communicate their decision.
If you disagree with a mental capacity assessment decision, for example if the person you look after is assessed as lacking mental capacity when you think they have mental capacity, there are various ways you can try and resolve this.
You can raise the matter with the person who carried out the assessment and ask them to give reasons why they believe the person lacks mental capacity to make the decision, and ask them to provide objective evidence to support that belief.
You could try and get a second opinion from an independent professional.
If you cannot resolve the disagreement, you may be able to apply to the Office of Care and Protection, who can make a decision as to whether a person has mental capacity.
If the person you look after is assessed as lacking mental capacity, any relevant decision made on their behalf should be done in their ‘best interests’. This is the case whether the person making the decision on behalf of the person lacking capacity is a carer, a lasting power of attorney, a court appointed controller, or a professional.
Who should actually make the best interest decision will depend on the type of decision in question and on whether there is anyone with the legal right to make the decision.
If the decision is an everyday decision, the person most directly involved with the person should be the ‘decision maker’. For example, if you help the person you look after get dressed, you will make the decision as to what they wear.
If the decision is about property or financial affairs and you have Enduring Power of Attorney, or a controllership for property and financial affairs, you should be the decision maker.
If there is not an Enduring Power of Attorney or controllership in place and it is not an everyday decision
In this case, the professionals involved would be the decision maker.
Making a decision in someone’s best interests
When making the best interest decision, if it is practical and appropriate to do so, the decision maker should consult any Enduring Power of Attorney or court appointed controller.
The decision maker should also consult anyone who is caring for the person, any close relatives and friends, and anyone else who is interested in the welfare of the person you look after.
They should also take into account the past and present wishes and feelings of the person you look after when making a decision in their best interests.