Who is Responsible for Deciding if Someone has Lost Mental Capacity?

Mental capacity is a very important legal concept, especially when it comes to making a decision about whether or not a power of attorney can be used to make a decision on someone else’s behalf.

Some types of ordinary and general powers of attorney can only be used while the donor (the person who made the power of attorney) retains metal capacity. Many lasting powers of attorney will only come into effect when the donor has lost mental capacity.

What is mental capacity?

A person can be said to have mental capacity if they are capable of fully weighing up their options in order to make an informed decision.

This is usually considered in the context of being able to manage finances or make a legal document such as a Will or LPA. It can also be important in terms of whether or not someone is capable of making a life decision in their own best interest, such as whether they should move into a care home, whether they should consent to medical treatment or even whether they should embark on a new relationship.

Mental capacity may be called into question when a person has:

  • A mental health condition that affects their mood, thinking and behaviour.
  • A loss of cognitive functioning due to a disease such as dementia or a brain injury.
  • A substance abuse illness that significantly affects their reasoning.

You can read more about the concept of mental capacity and how it relates to you in our help guide.

How is mental capacity determined?

Thankfully, in most cases it is reasonably straight forward to determine whether or not someone has lost mental capacity. This task often falls to the close family members of the individual in question, along with whoever it is who helps care for them on a regular basis.

In many cases, the person who is struggling with mental capacity will have gradually needed more and more support from their loved ones until it becomes clear that they are no longer able to manage their affairs independently.

In cases like these, the loved ones of the person in question will be able to make an assessment themselves, perhaps with support from a GP or legal professional.

If you have any doubt over someone’s mental capacity, you will need to consider whether they are capable of carrying out all the stages of decision making:

  • Are they able to understand all the relevant information they need to make the decision?
  • Are they able to remember that information for long enough to be able to properly consider it?
  • Are they able to weigh up that information and apply it to their own situation in order to come to a decision?
  • Are they able to communicate that decision?

It’s really important to make clear that the question of mental capacity can only be used to determine whether or not someone is capable of making a considered decision. An individual cannot be said to have lost mental capacity simply because they have made poor or unwise decisions.

What if there is a disagreement about mental capacity?

Unfortunately, these situations are not always straightforward. There can sometimes be disagreements over capacity.

This could be because:

  1. An individual may believe they still have mental capacity but their close family members do not agree.
  2. Family members might disagree about whether or not a relative still has mental capacity.
  3. Medical professionals may believe that a patient does not have sufficient mental capacity to make decisions about the medical care they receive.

When there is a dispute over mental capacity that cannot easily be resolved, the case will need to be considered by the Court of Protection.

The Court of Protection has the right to decide whether or not an individual has the necessary mental capacity to make decisions, either generally or in one specific area.

Can you have mental capacity in some areas but not in others?

Mental capacity is not always a black and white situation. A person can be judged to not have mental capacity in a certain situation, but to retain it in others. When this happens, it may be due to an issue with mental health or addiction.

For example, in 2021 the Court of Protection ruled that a 21-year-old pregnant woman with severe agoraphobia did not have the mental capacity to decide where she should give birth. (NHS Foundation Trust v Expectant Mother, 2021, EWCOP 33) The court made this decision on the basis that they believed that the woman was so overwhelmed by agoraphobia that she was unable to make an unbiased decision about where would be the safest place to give birth, both for herself and her baby.

Also in 2021, the Court of Protection ruled that a 49-year-old woman with anorexia did not have sufficient mental capacity to make the decision to refuse life-sustaining medical treatment related to her anorexia. (Mental Health Trust v ER and Anor, 2021, EWCOP 32).

In both these cases, the women concerned clearly had the ability to make informed decisions in other areas of their lives. However, their severe mental health conditions effectively blinded them in certain areas. The Court of Protection therefore ruled that they were unable to make decisions in their own best interest in those areas.

Who can you turn to for support?

If you are supporting a loved one and are concerned about their mental capacity, it can be difficult to know what the next best steps are. You might find it helpful to seek advice from an experienced solicitor.

A solicitor will be able to help you begin assessing your loved one and advise on what, if any, medical professionals will need to be consulted. The solicitor will able be able to consider any legal arrangements the person might have had in place for this eventuality, such as an LPA or an Advance Decision

How Roche Legal can help

We are reassuring experts who can help you with a wide range of legal matters. Please get in touch if you need legal support with:

Need further help?

If you would like to discuss these issues further, please contact us.

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