When people suffer a severe brain injury, its not unusual for them to be assessed to lack the mental capacity to make some, or all, decisions for themselves.
To protect these people known as Protected Parties, or P, the Mental Capacity Act 2005 (MCA) was drawn up. The aim of the MCA is to enable and support people who lack capacity, and not to restrict or control their lives. The MCA sets out to protect people who lack the capacity to make particular decisions whilst ensuring they are enabled and supported to participate in decision making, as far as they are able to.
The Five Statutory Principles of the Mental Capacity Act
The MCA contains five statutory principles which must be applied when making decisions on behalf of P:
- A person must be assumed to have capacity unless it is established that they lack capacity.
- A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
- A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
- An act done, or decision made, under the MCA for and on behalf of a person who lacks capacity must be done, or made, in his best interests.
- Before the act is done, or the decision made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.
Determining mental capacity
Capacity is decision specific, so someone may, for example, be deemed to lack the mental capacity to make decisions about their day-to-day finances but have the mental capacity to choose where they live. Its important that if there are concerns regarding someone’s ability to make independent, informed decisions about certain aspects of their life, that a mental capacity assessment is performed.
The Mental Capacity Act’s 2-stage test to determine capacity
To determine capacity, the MCA provides a 2-stage test:
Firstly, does the person have an impairment of the mind or body, or is there some sort of disturbance affecting the way their mind or body works – its important to note that the impairment or disturbance can be temporary or permanent. An impairment could be caused by a traumatic injury to the brain caused, for example, in a road traffic collision, or by illness such as dementia or a stroke.
Secondly, does that impairment or disturbance mean that the person is unable to make the decision in question at the time it needs to be made? The test for this focuses on an individual’s ability to;
- Have a general understanding of what decision they need to make and why they need to make it;
- Have a general understanding of the likely consequences of making or not making the decision;
- Understand, retain, use, and weigh up information relevant to the decision; and
- Communicate their decision, which could be by use of words, sign language or other means, and may include the services of a professional to help them communicate their decision.
Capacity can fluctuate over time and can improve or deteriorate.
The Court of Protection
If someone is deemed to lack capacity, the Court of Protection, a specialist court which protects and supports vulnerable people, will appoint a Deputy on behalf of the P. There are two types of Deputies a property and finance Deputy and a health and welfare Deputy. To find out more about the Court of Protection and Deputies, view our Court of Protection section:
How Brain Injury Group can assist
If you need help with mental capacity, the Court of Protection or Deputyships, Brain Injury Group has among its membership lawyers who specialise in this area of law. Our member lawyers will be happy to have an initial, no obligation chat with you regarding your individual circumstances. Visit our Find a Brain Injury Solicitor section to find a brain injury specialist solicitor or find a Court of Protection specialist solicitor.
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