What is the Difference Between Mental Capacity and Consent and Why Does It Matter?

At Thornton & Lee, we often receive enquiries from caring family members who advise us that their loved one “knows exactly what they want to happen” in relation to a new Will, or who they want to help with their money, for example. But is there a difference between being able to consent and express a wish or feeling about a particular matter, and having the mental capacity to make that decision? Let’s explore capacity and consent and the interesting interface between the two.

Definitions and Legal Context

According to the Mental Capacity Act 2005, mental capacity is defined as “a person’s ability to make their own decision.” Under the Act, someone has capacity if they can understand, retain, use, or weigh up information to make a particular decision, and then communicate their choice.

Consent is defined as “a voluntary and informed decision, given freely by a person.” In health and social care, valid consent requires that the person understands what they are agreeing to and makes the choice without pressure or coercion.

Is It Possible to Have Mental Capacity but Still Refuse to Consent?

Yes – both scenarios are possible and, in fact, very common. At Thornton & Lee, we often receive enquiries about situations where a person has capacity but does not consent, or where a person lacks capacity yet appears to consent.

It might be useful to look at some real-life case studies. Using the example of a person’s mental capacity to make decisions about the management of their property and financial affairs is a good way to illustrate the difference between capacity and consent.

The Mental Capacity Act 2005 requires that, for a person to have capacity to make a decision about the management of their property and financial affairs, they must be able to understand, retain, use or weigh the relevant information regarding those affairs. According to the Act, relevant information is the key detail a person must be able to understand, retain, and use or weigh to make the specific decision.

The Court of Protection considers relevant information in relation to property and financial affairs to include:

• The nature and extent of a person’s assets
• A general awareness of income and expenditure
• A basic ability to budget
• Insight into the consequences of financial decisions, such as paying bills, managing debts, or granting access to bank accounts

Meet Bob

Bob has recently been diagnosed with Alzheimer’s disease by the local Memory Service. He has noticed his short-term memory is declining but has implemented good strategies to counteract this, such as using a diary for appointments and a notebook to remind him of daily tasks.

Bob lives at home and is independent with all of his activities of daily living. He uses online banking, knows where his accounts are, and regularly checks his balance. He has excellent oversight of his income and expenditure, all bills are paid by direct debit, and he withdraws small sums of cash weekly to cover groceries and a cleaner.

Bob lives in an owner-occupied house. He knows his mortgage is paid off, and while he hasn’t recently had his home valued, he can estimate its worth by comparing it to his neighbour’s similar property listed on Rightmove.

Bob’s son Tony is very worried about how his father’s memory will deteriorate and wants him to set up LPAs so he can help in the future. However, Bob is extremely private about his money and does not want Tony to know about his financial affairs. Bob is also concerned because Tony has previously had problems with gambling. Although Bob worries about keeping his money safe as his memory declines, he is not ready to decide who should be his attorney, and he feels Tony may not be the best choice.

Bob has mental capacity regarding the management of his property and financial affairs, but he is not consenting.

Meet Betty

Betty was diagnosed with vascular dementia seven years ago, and it is now at a moderate to advanced stage. She was forgetting to eat, neglecting her personal care, and had begun wandering outside her home late at night. Betty now lives in a care home and is no longer oriented to time or place, believing it is 1998 and that she is at work.

She still recognises her daughter Sandra, with whom she shares a close, loving relationship. Sandra visits her daily at the care home.

However, Betty cannot recall her bank accounts, denies receiving a pension because she believes she is still working, and cannot remember her property address. When asked, she sometimes gives the address of her childhood home. She no longer talks in pounds or pence, instead referring to shillings.

When asked by Thornton & Lee if she understands her money and whether she would like help, Betty replies “yes please.” When asked who she would like to help her, she consistently says “Sandra, my daughter. She is very trustworthy and good with figures.”

Betty does not have mental capacity regarding the management of her property and financial affairs, but she does consent.

What if the Family Believes Their Loved One Lacks Capacity but Refuses to Consent to an Assessment?

In our work at Thornton & Lee, we often meet people who are assumed to lack capacity for a particular decision and who also refuse to consent to an assessment. This might involve appointing someone to manage their property and financial affairs, making a Statutory Will, or being removed as a trustee via the Court of Protection.

In such cases, we may consider completing the mental capacity assessment in the person’s best interests. According to the Mental Capacity Act 2005, a best interests decision is “a decision made on behalf of someone who lacks the mental capacity to make the decision for themselves.” Professionals and families must always consider the person’s wishes, feelings, and values before making a best interest decision and ensure best interest decisions aim to protect the person’s rights, wellbeing, and future.

In summary, this involves weighing up whether completing the assessment despite their refusal or inability to consent can be justified if it ultimately achieves a greater good for the person.

Our Approach

At Thornton & Lee, our assessors are skilled and experienced at engaging with even the most reluctant individuals, including those who display challenging behaviour. Our professional, warm, and holistic approach to capacity assessments is conversational, and we take time to understand the person’s needs and circumstances before the appointment. This allows us to tailor our approach, increasing the chances of putting the person at ease and minimising distress.

What Can Families Do if Their Loved One Has Capacity but Refuses to Consent?

At Thornton & Lee, we are strong advocates of honest and sensitive conversations within families. If your loved one has mental capacity for a decision, such as executing Lasting Powers of Attorney (LPAs), but is not consenting, then the assessment or legal document cannot go ahead.

We understand how frustrating and worrying this can be for families, especially when early dementia symptoms such as suspicion or paranoia may influence a person’s refusal. However, in conditions like dementia where capacity is likely to deteriorate, there may later be an opportunity to complete an assessment in the person’s best interests once capacity has been lost. At this point, a Deputyship application can be pursued via the Court of Protection instead of LPAs.

Why Are Wishes and Feelings Important if the Person Does Not Have Capacity?

Even if a person does not have mental capacity, the Mental Capacity Act 2005 requires that their wishes, feelings, and values are taken into account. This ensures that decisions made on their behalf remain respectful, person-centred, and in line with what they would likely have wanted.

If you have concerns about the mental capacity of a loved one complete our contact form here and a friendly and professional member of the Thornton & Lee team will be in touch to talk about your needs for a mental capacity assessment.