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What is Mental Capacity?

Guiding Principles

  • 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 them to do so have been unsuccessful.
  • A person is not to be treated as unable to make a decision merely because they make an unwise decision.
  • Capacity must be considered in respect of each decision that needs to be made and it does not necessarily follow that because someone lacks capacity to make one decision they lack capacity to make any other decision.

People who lack capacity

A person is deemed to lack capacity to make a specific decision if they have an impairment of, or a disturbance in the functioning of, the mind or brain AND they are unable:

  • to understand the information relevant to the decision, OR
  • to retain that information for long enough to make the decision, OR
  • to use or weigh that information as part of the process of making the decision, OR
  • to communicate his/her decision (whether by talking, using sign language or any other means).

BUT a lack of capacity cannot be established just by reference to the person’s age, appearance, or behaviour. 

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