[2024] UKUT 411 (AAC)

The Mental Capacity Act concerns the mental capacity to make decisions, the circumstances in which decisions may be made for those who lack capacity, and the rights of those who lack capacity.

The Mental Capacity Act deals with various issues concerning mental capacity. Section 1 sets out the following broad principles:

“The principles

1.

- (1) The following principles apply for the purposes of this Act.

(2)

A person must be assumed to have capacity unless it is established that he lacks capacity.

(3)

A person is not to be treated as unable to make a decision unless all practical steps to help him to do so have been taken without success.

(4)

A person is not to be treated as unable to make a decision merely because he makes an unwise decision.

(5)

An act done, or decision made under this Act for or on behalf of a person who lacks capacity must be done or made in his best interests.

(6)

Before the act is done, or the decision is 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 right and freedom of action.”

Lack of capacity is explained in section 2 of the Mental Capacity Act as follows:

“People who lack capacity

2.

- (1) For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.

(2)

It does not matter whether the impairment or disturbance is permanent or temporary.

(3)

A lack of capacity cannot be established merely by reference to-

(a)

a person’s age or appearance, or

(b)

a condition of his, or an aspect of his behaviour which might lead others to make unjustified assumptions about his capacity.

(4)

In proceedings under this Act or any other enactment, any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities.

(5)

No power which a person (“D”) may exercise under this Act-

(a)

in relation to a person who lacks capacity, or

(b)

where D reasonably thinks that a person lacks capacity, is exercisable in relation to a person under 16.

(6)

Subsection (5) is subject to section 18(3).”

Section 3 of the Mental Capacity Act explains when a person is to be considered unable to make a decision for himself. It provides:

“Inability to make decisions

3.

- (1) For the purposes of section 2, a person is unable to make a decision for himself if he is unable-

(a)

to understand the information relevant to the decision,

(b)

to retain that information,

(c)

to use or weigh that information as part of the process of making the decision, or

(d)

to communicate his decision (whether by talking, using sign language or by any other means).

(2)

A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means).

(3)

The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.

(4)

the information relevant to a decision includes information about the reasonably foreseeable consequences of –

(a)

deciding one way or another, or

(b)

failing to make the decision.”