1. The core principles of the MCA 2005 are set out in s.1. They are:

• s.1(2): P must be assumed to have capacity unless it is established that he lacks capacity;
• s.1(3): P is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success;
• s.1(4): P is not to be treated as unable to make a decision merely because he makes an unwise decision;
• s.1(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; and 
• s.1(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 rights and freedom of action. 

The presumption of capacity 

2. The presumption that P has capacity is fundamental to the Act. It is important to remember that P has to ‘prove’ nothing: 

• Outside the court setting, if you are going to take action in the name of P’s best interests, you will have to show why you have a reasonable belief that they lack capacity to make the decision(s) in question, and that you have taken reasonable steps to establish this (s.5(1)); 
• If you are in court, you will need to show the judge why – on the balance of probabilities – it is more likely than not that P lacks capacity to make the decision()s in question (s.2(4)). 

3. It is important to be aware that very act of deciding to carry out a formal capacity assessment is not, itself, neutral, and the assessment process can, itself, often be (and be seen to be) intrusive. You must always have grounds to consider that one is necessary to do at this time.[1]See Re SB (capacity assessment) [2020] EWCOP 43 as an example of a case where the Court of Protection decided that it was not necessary or appropriate to order a further capacity assessment in a case … Continue reading   
4. Conversely, you must also be prepared to justify a decision not to carry out an assessment where, on its face, there appeared to be a proper reason to consider that the person could not take the relevant decision and there were best interests to consider:  

• Whilst the presumption of capacity is a foundational principle, you should not hide behind it to avoid responsibility for a vulnerable individual.[2]As the House of Lords Select Committee looking at the MCA 2005 reported, this unfortunately happens all too frequently – in our experience, most often in the context of self-neglect. House of Lords … Continue reading   In our experience, this can happen most often in the context of self-neglect where it is unclear whether or not the person has capacity to make decisions.[3]See, for instance, the cases discussed in Learning from SARS: A report for the London Safeguarding Adults Board (July 2017) 
• If you have proper reason to think that the person may lack capacity to take a relevant decision, especially if the consequence of what they are wanting to do is likely to lead to serious consequences for them, it would be simply inadequate for you simply to record (for instance) “as there is a presumption of capacity, [X] decision was the person’s choice.” Indeed, the more serious the issue, the more one should document the risks that have been discussed with P and the reasons why it is considered that P is able and willing to take those risks.   See further this guidance on assessing capacity in a risky situation.

5. It is also important to remember that some people can ‘talk the talk, but not walk the walk’, or, in other words, can give a very strong appearance of ability to decide for themselves when in fact they are unable.  This might happen, for example, if they have had numerous prior capacity assessments but there are also clinical contexts in which this can happen.  There is more guidance about this here.  
6. Conversely, it is important to remember that some people don’t seem to be able to ‘walk, the walk’, when, in fact, they can. Taking practicable steps to ensure they can is essential (see also here on the so-called causative nexus).

The support principle

7. To comply with s.1(3) MCA 2005, you must take all practicable steps to help P before concluding that they are nevertheless unable to make a decision.[5]See also here Chapter 2 of the Code of Practice to the MCA 2005.  And, importantly, consider why is it that you were unsuccessful in enabling P to decide despite those steps having been taken? This will include asking yourself – and being in a position to record – the answers to questions such as:

• What is the method of communication with which P is most familiar (is it, for instance, a pointing board, Makaton or visual aids)?
• What is the best time of day to discuss the decision in question with P?
• What is the best location to discuss the decision in question with P? 
• If you do not know P, would it assist to have another person present who does (and, if they do, what role should they play)?  
• Has P made clear (in whatever fashion) that there is someone that they would like to be present, or someone they would really like not to be present? 
• What help does P require to learn about and understand the information relevant to the decision?  For instance, does P need to be taken to see different residential options? Have you explained to P all the pieces of information that you have identified as being relevant to the decision?
• Is it possible to complete the assessment in one go, or is it necessary to come back and see P on more than one occasion, even if only to put P at their ease and help them engage with the process?[6]For an example of the difference that this can make, see the contrasting assessments of P’s capacity to make decisions as to residence and care in Re FX [2017] EWCOP 36. 
• And, perhaps above all, is there something that you can do which might mean that P would be able to make the decision?  Depending upon the circumstances, this could be simply waiting: it is always important to be clear about how much time that you have before a conclusion has to be reached (and, if it does not seem enough, to see what could be done to buy more time).   It could also be doing with P to assist them with the particular area of difficulty: see for a good example, Re DE [2013] EWHC 2562 (Fam), in which (whilst Court of Protection proceedings were ongoing), an intensive programme of education was provided to a learning disabled man, in consequence of which he gained the capacity to consent to sexual relations.

The ‘unwise decisions’ principle

8. Different people will make different decisions because they give greater weight to some factors than to others, taking account of their own values and preferences.  This principle emphasises that in assessing a person’s capacity what matters is the ability to make a decision, not the outcome of that decision.  As the Court of Appeal has said: 

… there is a space between an unwise decision and one which an individual does not have the mental capacity to take and … it is important to respect that space, and to ensure that it is preserved, for it is within that space that an individual’s autonomy operates.[7]PC and NC v City of York Council [2013] EWCA Civ 478 at paragraph 54.

9. However, if a decision appears objectively to be unwise – in particular if it is out of character – it should be a trigger for considering whether the person has capacity to make it.

Thinking about capacity – whose responsibility is it?

10. Sometimes, people do not stop and think properly about who needs to think about the person’s capacity.   
11. In the courtroom setting, it is ultimately the judge’s decision as to whether or not the person has capacity to make the decision(s) in question.   They have to do so on the balance of probability,[8]Section 2(4) MCA 2005 providing that “[i]n 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 … Continue reading after obtaining all the evidence that they consider necessary to be able to reach this conclusion. 
12. Outside the courtroom setting, i.e. in almost all circumstances in which this guidance will apply, the responsibility will lie on you if you are proposing to take the step in question on the basis that it is in P’s best interests.[9]For more on this, see the 39 Essex Chambers Guidance Note: Determining and Recording Best Interests. It will also fall on you if, on its face, there appeared to be a proper reason to consider that the person could not take the relevant decision and there were best interests to consider. You will need to have to show that you: have taken reasonable steps to establish whether or not P has capacity to make the decision in question; and have a reasonable belief that P lacks capacity.
13. That does not mean that you cannot seek expert assistance.  But it does mean that that you cannot delegate the decision as to capacity to that expert.

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