Who decides if someone lacks capacity?

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When it comes to deciding if someone lacks capacity, it is important to understand the legal framework that governs the process. In the UK, the Mental Capacity Act 2005 sets out the legal framework for assessing capacity and making decisions on behalf of those who lack it.

The Mental Capacity Act states that a person is assumed to have capacity unless it is established that they lack it. This means that all individuals must be given the opportunity to make decisions for themselves, and must not be assumed to lack capacity just because of their age, appearance, condition or behaviour.

In the codes of practice, the people who decide whether or not a person has the capacity to make a particular decision are referred to as ‘assessors’. This is not a formal legal title. Assessors can be anyone – for example, family members, a care worker, a care service manager, a nurse, a doctor or a social worker.

The assessor must assess the person’s capacity to make a particular decision, rather than their overall capacity. This means that a person may have capacity to make some decisions, but not others.

The assessor must take into account all relevant information when making their assessment. This includes any relevant medical evidence, as well as the person’s wishes, feelings, beliefs and values. The assessor must also consider any help that the person may need in order to make the decision.

The assessor must also consider whether the person has the ability to understand, retain, use and weigh up the information relevant to the decision, and to communicate their decision.

If the assessor believes that the person lacks capacity to make the decision, they must provide reasons for their decision. The reasons must be based on the information available to the assessor at the time of the assessment.

It is important to remember that the assessor’s decision is not final. If the person or their family disagrees with the decision, they can ask for a second opinion.

In conclusion, the assessor plays an important role in deciding if someone lacks capacity. It is important that the assessor takes into account all relevant information when making their assessment, and that they provide reasons for their decision.