Determining mental capacity: guidance from the courts

The Mental Capacity Act 2005 aims to promote autonomy and self-determination by setting out in its provisions the assumption that persons aged 16 or older can make decisions for themselves. That assumption is rebuttable, and it would be for a nurse with doubts about a person's capacity to make decisions to show the person cannot make the decisions through a mental capacity assessment, by applying the provisions of sections 2 and 3 of the 2005 Act and following the guidance set out in the Code of Practice (Department for Constitutional Affairs, 2007). Nurses have a duty, under section 42 of the Mental Capacity Act 2005, to have regard to the Code of Practice and its guidance.

Although the Courts generally hold the Code of Practice in high regard, several cases, including those in the Court of Appeal and Supreme Court, have taken issue with the Code's approach to the assessment, with the Courts setting out their own guidance to the approach to be taken when assessing capacity (NCC v PB & TB [2014]; A local authority v JB [2021]).