In Section 1(2) of the Mental Capacity Act (MCA) it states the following:
“A person must be assumed to have capacity unless it is established that he lacks capacity”.
This principle therefore focuses on supporting individuals to make their own decisions whenever possible and is often shortened to the phrase ‘Supported Decision Making’ – but what does this actually mean in practice?
From Theory to Practice
For me the easiest way to think about this is consider you need to make a significant decision about something. You are unlikely to do this until you have been given all the relevant information, in a way that you can understand.
This includes offering clear, accessible information and providing help in ways that are tailored to the individual’s needs, such as using simple language, visual aids, or allowing additional time for decision-making.
I am often asked how far we need to go in terms of providing this support. The Act and subsequent caselaw are clear that we only need to do what is reasonable. It is not necessary to explore and use every single communication aid and device ever invented, just those that are reasonable at the time, for that individual.
Isn’t that cheating?
Imagine you are going to see a Doctor about an operation. Before you made your decision you would expect to be given information about what to expect, the risks, the recovery period etc. Is having this information ‘cheating’?
In the ruling of Hoff v Atherton (2004) the judge stated that the individual does not need to actually know the relevant information, merely have the ability to understand it once explained to them. To my mind, this supports the notion that we can give people information (for example, remind them of the size of their estate) but that if we do, we must make sure that they are able to understand it, retain it and weigh and use it appropriately.
Conclusion
This principle acknowledges that some people may face barriers to understanding information, but with the right support, they may be fully capable of making decisions. It emphasises the importance of empowerment and promoting autonomy.
It also places an onus on the assessor to ensure that all reasonable, supportive interventions to help someone understand have been tried before concluding that an individual lacks capacity.
Don’t forget though, that if you do provide information, you must check that the individual is able to understand, retain and weigh up and use it appropriately.
Tim Farmer is a multi-award-winning author and expert witness specialising in the assessment of mental capacity and financial vulnerability. He has over 30 years of experience of working with adults and children with capacity issues, impaired cognition and poor mental health. He has conducted thousands of capacity assessments and his book ‘Grandpa on a Skateboard: The Practicalities of Assessing Mental Capacity and Unwise Decisions’ is considered a core text at many universities and colleges.
