Mental capacity means a person’s ability to make their own choices and decisions. 

This includes the ability to make a decision that affects daily life, such as…

When to get up

What to wear

Whether to go to the doctor

It also refers to a person’s ability to make more serious, significant and life-changing decisions including those that may have legal consequences for them or other people. Examples include…

Agreeing to medical treatment

Purchasing expensive items

Making or changing a Will

Under the MCA, the starting point must always be to assume that a person does have the mental capacity to make a specific decision, unless it can be established they lack capacity.

Some people may need help to be able to make or communicate their wishes, but this does not necessarily mean that they lack capacity to make a decision. What matters is their ability to carry out the processes involved in making the decision.

The law says a person’s capacity is judged according to the specific decision to be made. 

This means a person may have sufficient capacity to make simple decisions but not more complicated ones.

For example, a person may have capacity to make decisions about everyday issues such as what to wear or what to eat, but they may lack capacity to make more complex decisions about financial matters.

A person who lacks capacity to make a decision for themselves at a certain time may be able to make that decision at a later date. 

This may be because they have an illness or condition that means their capacity changes. It may be because at the time the decision needs to be made, they are unconscious or barely conscious whether due to an accident or being under anaesthetic or their ability to make a decision may be affected by the infl uence of alcohol or drugs. 

While some people may always lack capacity to make some types of decisions, for example, due to a condition or severe learning disability that has affected them from birth. Others may learn new skills that enable them to gain capacity and make decisions for themselves.

…But he still has some growing to do because the MCA applies to adults aged 16+.

What is meant by lack of capacity?

Under MCA, a person lacks capacity if at a particular time, about a particular issue, if he or she is unable to make a decision because of an impairment of, or a disturbance in the functioning of, the mind or brain.

This means that a person lacks capacity if: 

They have an impairment or disturbance, for example, a disability, condition or trauma, that affects the way their mind or brain works, and the impairment or disturbance means that they are unable to make a specific decision at the time it needs to be made. 

Anybody who claims that an individual lacks capacity should be able to provide proof. They need to be able to evidence that it is more likely than not that the individual lacks capacity to make a particular decision.