What is mental capacity?
Mental capacity is the ability of a young person over the age of 16 to make their own decisions. This means being able to:
- understand information given to them in relation to a decision
- remember the information long enough to make a decision
- use or weigh up the information available
- communicate their decision in any way which can be recognised
If they are unable to meet these criteria, they are considered to be ‘lacking capacity’. This can include young people with learning disabilities, mental health problems or brain injury.
When a young person over the age of 16 has been assessed as lacking mental capacity, there may be many different people and agencies involved in making decisions on their behalf, depending on the complexity of the situation. This includes parents, medical and educational professionals and other agencies.
The Mental Capacity Act 2005 (MCA) provides a clear framework for parents on who should be consulted in the decision-making process and when (for example in life-saving treatment).
The 5 main principles of the Mental Capacity Act:
- Always assume the person is able to make the decision until you have proof they are not.
- Try everything possible to support the person make the decision themselves.
- Do not assume the person does not have capacity to make a decision just because they make a decision that you think is unwise or wrong.
- If you make a decision for someone who cannot make it themselves, the decision must always be in their best interests.
- Any decisions, treatment or care for someone who lacks capacity must always follow the path that is the least restrictive of their basic rights and freedoms.
It's also important to remember that a person may have capacity for some decisions but not others, or they may not have capacity right now but may regain it in the future with support. This means all capacity decisions should be regularly reviewed to make sure they still reflect the person's ability to make decisions.
When a young person ‘has capacity’
In law, young people aged 16 and over are presumed to have capacity. They can consent to, or refuse, treatment in their own right, including hospital admission.
They can refuse access to their medical records and not give consent for clinicians to disclose information to parents.
Under 16s
The MCA does not apply to under 16s. In order to decide whether a child under 16 is able to consent to their own medical treatment, without the need for parental permission or knowledge they are assessed to establish if they are competent to make such decisions. This assessment is referred to as ‘Gillick Competence’.
Click here to read more about the Mental Capacity Act 2024.