The courts are often called upon to sanction treatment for patients whose ability to make decisions for themselves is impaired. In a recent case on point , the Court of Protection had to decide whether it was in the best interests of a man with mental...
The Alzheimer’s Society report that in 2015 there were 850,000 individuals living with Dementia in the UK. It is anticipated that by 2025 these figures will increase to 1,142,677 and again to 2,092,945 by 2051.
Following a diagnosis of Dementia or Alzheimer’s it is common for the person receiving the diagnosis and their family to hear the term ‘mental capacity’ being used more often than before. But what does the term ‘mental capacity’ really mean?
Lack of mental capacity is defined by the Mental Capacity Act 2005 as an impairment of, or a disturbance in the functioning of, the mind of brain. The following test must be applied when trying to establish whether an individual has the necessary capacity to make a decision for him/herself:
- Is the individual able to understand the information relevant to the decision?
- Is the individual able to retain that information?
- Is the individual able to use or weigh up that information as a part of the decision making process?
- Is the individual able to communicate the decision?
It is important for those assessing capacity to note that the test is both decision and time specific i.e. is the individual able to make the necessary decision at the time that it needs to be made? It is also worthwhile pointing out that communication does not have to be verbal. An individual is able to communicate their decision by any means i.e. through the use of sign language or by writing their response to the questions being asked.
Those assessing capacity should also bear in mind that an individual may lack capacity to make some decisions for example a decision regarding a complex investment portfolio or the sale of property but still have capacity to make other decision such as what they would like to eat for lunch or buy from the local shop.
Further, when considering the issue of capacity those conducting the assessment must have regard for the five key principles set out in the Mental Capacity Act 2005. They are as follows:
- A person must be assumed to have capacity unless it can be established otherwise.
- 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 taken without success.
- A person is not to be treated as unable to make a decision merely because the decision he/she is making is unwise.
- An act done, or decision made, under the Mental Capacity Act for 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 is made, regard must be had to whether the purpose for which it is needed can be effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.
The team at T G Baynes Solicitors understand just how emotional and overwhelming receiving a diagnosis of Dementia can be. We are keen to help those receiving a diagnosis and their families understand how best to manage the challenges which lie ahead.