Eastwood Mind and memory

Mental Capacity

What is Mental Capacity?


Mental Capacity is the ability to make a particular decision or take a particular action for yourself at the time the decision or action needs to be undertaken.

Mental Capacity forms the core of the Mental Capacity Act 2005 which has five statutory principles. Two of these are:

  • You are assumed to have capacity unless it is established that you lack capacity
  • You are not to be treated as unable to make a decision just because you make an unwise decision

The Act also states that a person’s capacity must not be judged simply on the basis of their age, appearance, condition or an aspect of their behaviour. Everyone should be treated equally. It is important to support a person and take all possible steps to help a person make a decision for themselves.

How is Mental Capacity Assessed?


There is a two stage test of capacity

  1. Does the person have an impairment of mind or brain, or is there some sort of disturbance affecting the way their mind or brain works? (This can be permanent or temporary)
  2. If so, does the impairment or disturbance mean that the person is unable to make the decision in question at the time it needs to be made?

How is the ability to make a decision assessed?


There are 4 parts to this:

  1. Does the person have a general understanding of the decision they need to make and why they need to make it?
  2. Does the person have a general understanding of the likely consequences of making, or not making, this decision?
  3. Is the person able to understand, retain, use and weigh up the information relevant to this decision?
  4. Can the person communicate their decision?

Reference: Mental Capacity Act 2005 – Code of Practice 2007