Spotting when someone has lost their mental capacity

It can be very difficult to accept that a loved one is no longer able to make their own decisions. But the Mental Capacity Act has some useful pointers to help you recognise when this time might have come

Over time, someone with dementia will eventually lose the ability to understand information and make decisions based on that information. The legal definition of this is called ‘lacking in mental capacity,’ and it’s set out clearly in a special law called the Mental Capacity Act 2005.

Did you know? An estimated two million people in the UK are unable to make decisions for themselves because of disability, mental illness, brain injury or dementia.

What is mental capacity?

The law states that someone has mental capacity if they are able to:

- Understand information given to them about a particular decision

- Retain that information long enough to be able to make the decision

- Weigh up the information available to make the decision

- Communicate their decision (through talking, sign language, writing)

How will you know when they no longer have mental capacity?

The Mental Capacity Act sets out a two-stage test:

  1. Does the person you’re caring for have an impairment of, or a disturbance in the functioning of, their mind or brain, whether as a result of a condition, illness, or external factors such as alcohol or drug use?
  2. Does the impairment or disturbance mean they are unable to make a specific decision when they need to? Individuals can lack capacity to make some decisions but have capacity to make others, so it is vital to consider whether the individual lacks capacity to make the specific decision.

Remember, capacity can fluctuate with time – someone with dementia may lack capacity at one point in time, but may be able to make the same decision at a later point in time. Where appropriate, individuals should be allowed the time to make a decision themselves.

If the answer to both questions is yes, then they’ll be deemed lacking in mental capacity for that specific decision, and they may need help and support making the decision. Remember, it is only on a per decision basis that someone is judged to be lacking mental capacity.

Who decides if someone is lacking mental capacity?

The Mental Capacity Act says that someone should have as much help as possible so that they can make their own decisions.

Anyone can assess capacity. For everyday decisions, a relative or carer is the person most likely to need to assess whether the person is able to make a particular decision. Professionals are more likely to have to formally assess capacity when decisions are more complex. If the decision is about treatment, a doctor may assess capacity; if it is a legal decision, a solicitor may assess capacity.

All medical and social care professionals and paid carers, as well as people performing certain roles and functions created by the Mental Capacity Act, must ‘have regard to’ the Code of Practice that accompanies the Act when they are supporting someone that lacks capacity. This involves paying attention to the Code and being able to demonstrate familiarity with its guidance. If they do not follow the Code, they should be able to give convincing reasons why they are not.

So how will you recognise this point?

You may have noticed that a parent or partner is not coping day to day or isn’t very well, but when you suggest something, they either forget the information, or doesn’t understand it, and so is unable to make a decision on what you suggested.

For someone with dementia, it could mean that an important decision – for example, deciding to move out and sell a house or choosing to have particular medical care, will need to be made by someone else, usually someone who has been given Lasting Power of Attorney.

However, the Mental Capacity Act also stipulates that any decisions made on behalf of someone are in their best interests.

This means:

  1. Every adult has the right to make their own decisions if they have the capacity to do so. Family carers and healthcare or social care staff must assume that a person has the capacity to make decisions, unless it can be established that they don't.
  2. People should receive support, and all possible steps should be taken, to help them make their own decisions.
  3. People have the right to make decisions that others might think are unwise, and this should not automatically result in them being labelled as 'lacking capacity'.
  4. Any act done for, or any decision made on behalf of, someone who lacks capacity must be in their best interests.
  5. Any act done for, or any decision made on behalf of, someone who lacks capacity should be an option that is less restrictive of their basic rights and freedoms – as long as it is still in their best interests.

So it’s very important that you get the right balance between recognising that someone may need support making a decision because they are lacking mental capacity and ensuring that you’re acting in their best interests.

For more information on the Mental Capacity Act, click here.