Mental capacity

Adults have the right to autonomy and self-determination, even when their choices may place them at risk, provided they have the mental capacity to make those decisions. 

Adults may sometimes make choices about their lives that others may not agree with or that seem unusual—such as hoarding, self-neglect, or returning to an abusive partner. These situations can be particularly challenging in safeguarding work. 

Across the UK, legislation recognises that all adults are presumed to have the capacity to make their own decisions unless proven otherwise.

This principle is embedded in the following laws: 

• England and Wales: Mental Capacity Act 2005
• Scotland: Adults with Incapacity (Scotland) Act 2000
• Northern Ireland: Mental Capacity Act (Northern Ireland) 2016 

These laws share a set of common principles:

• adults must be supported to make their own decisions wherever possible, recognising that capacity is specific to each decision and may change over time.
• a person should not be considered to lack capacity simply because they make a decision that others view as unwise.
• but when someone is found to lack capacity, any action taken or decision made on their behalf must be in their best interests and should represent the least restrictive option available in terms of their rights and freedoms.

Assessing whether an adult has the mental capacity to make a specific decision is a task that must be carried out by qualified professionals—typically health or social care practitioners. This is not the responsibility of individuals in faith or community roles. However, if you are concerned that someone may lack capacity, it is important to raise your concerns with your safeguarding lead or directly with Adult Social Care or the appropriate safeguarding authority. 

Professionals use a two-stage test to assess capacity:

Diagnostic Test - does the person have an impairment of the mind or brain (e.g. due to illness, injury, learning disability, or substance use)?

Functional Test – Does this impairment mean the person is unable to: 

• understand the information relevant to the decision? 
• retain that information? 
• use or weigh up the information to make a decision? 
• communicate their decision?

Before concluding that someone lacks capacity, professionals must ensure the person has been given all practicable support to help them make the decision themselves. This might include using different communication methods, involving an advocate, or choosing a more suitable time for discussion.

If you suspect someone may lack capacity, your role is to signal concern, not to diagnose. Always seek advice from safeguarding professionals who are trained to carry out formal assessments and determine the appropriate next steps.  

Issues of capacity and consent are key elements in adult protection work. Capacity refers to the ability to make and understand a decision, act, or transaction. However, there remains a fundamental duty to balance the person’s right to autonomy with their need for protection. 

Any decisions taken that are deemed to be in the person’s best interest should be clearly documented to show how the decision was reached.

As the Safeguarding Lead, you are not expected to be an expert in assessing mental capacity and, when in doubt, always seek advice.