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Mental capacity solicitors - disputes & assessments

What is the the Mental Capacity Act 2005? The Mental Capacity Act is the current legislation which offers protection to those who may lack mental capacity. The act clearly sets out the processes for how decisions should be made on behalf of people who lack the mental capacity to make these decisions themselves.

The act states that any decision made on behalf of someone who lacks the necessary mental capacity must be made in their best interests. In the event an agreement can reached in respect of what is in a person’s best interests, for example, if there is a dispute between professionals and family members, the dispute should be put before the Court of Protection.

Disputes can develop in relation to a variety of issues, including:

  • Whether a person does or does not have mental capacity
  • Where a person should live (for example, at home or in residential care, or choice of residential care)
  • What care a person should receive
  • A person’s contact with others (for example whether contact should be restricted, supervised or stopped altogether)
  • Serious medical treatment (including disputes about stopping or continuing 'life support', and disputes about sterilisation)
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Mental capacity assessment FAQs

The area of mental capacity assessments can be complex. We have included information below in response to some of the most common questions we are asked about on mental capacity act assessments and related subjects. If you can’t find the answer to your question here, please get in touch with our expert team, who will be happy to help.

The 5 principles of the Mental Capacity Act

The Mental Capacity Act 2005 establishes the following key principles:

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

  2. 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

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

  4. An act done, or decision made, for or on behalf of a person who lacks capacity must be done, or made, in their best interests

  5. 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

What is a mental capacity assessment?

Someone may be assessed to lack mental capacity to make a decision for themselves. This can occur where a person has a mental impairment (for example, a condition such as dementia, a learning disability or brain injury) and as a result of that condition, is unable to do any of the following:

  • To understand the information relevant to the decision that needs to be made
  • To retain that information
  • To use or weigh that information as part of the process of making the decision or
  • To communicate their decision (whether by talking, using sign language or any other means)

The Mental Capacity Act 2005 states that everyone is assumed to have mental capacity until an assessment establishes otherwise.

Who can carry out a mental capacity assessment?

A mental capacity assessment must be undertaken by a suitably qualified professional, such as a social worker or a medical professional (for example, a psychologist or psychiatrist).

The assessment should be carried out in accordance with the Mental Capacity Act (MCA), with two stages to the test.

How to assess mental capacity

The two stages test for mental capacity means that the assessor must determine:

  • Whether the person has an impairment of their mind or brain
  • Whether that impairment means that the person is unable to make a specific decision when needed. They may be able to make some decisions and not others, so this should be taken into account for the assessment, along with factors such as fluctuations in mental capacity, where they may be able to make this decision themselves at another time

If the person isn’t able to understand, retain or weigh up and use the information given in relation to the process of making a specific decision, they may be assessed as lacking mental capacity for the purposes of that particular decision that needs to be made at that time.

Should you find yourself in a mental capacity dispute regarding a love one, please do not hesitate to contact us on 01616 966 229 for assistance. 

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Case study - Challenging a mental capacity assessment

Our specialist Court of Protection team recently represented a vulnerable adult in court proceedings during which there was a dispute as to whether he lacked mental capacity to decide where he wanted to live.


This case related to an adult male, who will be referred to herein as FD in the interests of anonymity. FD had a diagnosis of Korsakoff’s syndrome (alcohol related brain damage). It was also well documented that FD had suffered a long history of strokes.

FD suffered a severe stroke, following which he spent 18 months in hospital. FD was discharged from hospital to a residential care home, as professionals considered that he required residential care and support to meet his care needs due to the impact of the stroke. The measures in place at the care home were becoming overly restrictive given the improvement in FD’s presentation (which resulted in his needs for support reducing).  FD was therefore moved to a different care home, more suited to his reduced level of needs. 

Court application

FD then began to object to living at the second care home, consistently expressing his wish that he be able to live in a more independent living setting. It appeared that insufficient consideration has been given to whether FD’s eligible needs could be met by a package of care in a less restrictive living setting which would be in accordance with his strongly expressed wishes and feelings. Given FD’s objections and that he appeared to be clearly unhappy at the care home, an application was made to the Court of Protection pursuant to Section 21a Mental Capacity Act 2005 (MCA).

After reviewing the evidence, the court determined that FD should move into a self-contained flat (within the grounds of the residential care home) for a trial period. During this trial period, it is understood that staff were merely monitoring FD, as opposed to directly supporting him, as his independent skills had considerably improved. During the trial period, FD was reported as missing after not returning to the flat one day.

In light of this, it was determined that the trial period would come to an end due to concerns around FD’s safety when residing in a more independent setting. FD was then moved back to a standard room within the care home and restrictions were implemented which prohibited him from accessing the community alone.

During FD’s residence at the care home, FD was deprived of his liberty and was subject to a Standard Authorisation. This is the legal instrument which is implemented to ensure that keeping FD at the care home against his wishes was lawful.

Mental capacity

Following the solicitor’s first legal visit to FD, he held concerns that the content of the most recent capacity evidence was not particularly accurate, particularly in relation to FD’s ability to ‘use and weigh’ the relevant information. In the application which was made to the court, it was requested that updated capacity evidence be served by the local authority and that the necessary assessments be undertaken by a person who had not had any previous involvement with FD. This request was subsequently approved by the court and an order was made that updated capacity evidence be provided.

The updated capacity assessment was undertaken by a social worker who was employed by the local authority, and the social worker concluded following this further assessment that FD had capacity to make decisions in respect of where he wanted to live, however, he lacked capacity to decide what type of care he should receive. The effect of said findings was that FD was free and able to choose his next placement, however, it was on the provision that the future placement provided a level of care which would meet his assessed needs for care and support.

Following the assessment, a number of placements were identified and FD had the opportunity to go and visit each of them. FD ultimately decided that he wanted to move to a sheltered accommodation placement, this was due to the fact that it would give him a lot more independence whilst ensuring he would receive the care and assistance that he needed. FD subsequently moved and was extremely happy that he was being offered the opportunity to ‘have a life again’.

The case demonstrates the importance of seeking the assistance of a Court of Protection solicitor where a loved one is objecting to or presenting as unhappy at the care home that they are in. The law is complex, and properly made court applications and challenges to mental capacity assessments can result in a loved one being found to have capacity to make the decision for themselves. This is extremely important in upholding a person’s autonomy, and ensuring that someone with mental capacity is not prevented from making their own decisions and being unlawfully deprived of their liberty at a care home or other placement.

Should you find yourself in a mental capacity dispute regarding a love one, please do not hesitate to contact us on 01616 966 229 for assistance. 

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