Mental capacity is defined as one’s ability to make informed decisions based on information provided and communicate the decision made to others. 

It is often wrongly assumed that all people with learning disabilities do not have the mental capacity to make decisions of their own.  

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

The principles regarding decision making, laid out in the Mental Capacity Act (England and Wales) 2005, are similar in legislation across the UK:

1. A person must be assumed to have capacity unless it is established that they lack capacity. 
2. A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success. 
3. A person is not to be treated as unable to make a decision merely because he makes an unwise decision. 
4. A decision made under this Act for or on behalf of a person who lacks capacity must be made in his best interests. 
5. Before the decision is made, it is important to ensure that the purpose for which it is needed cannot be effectively achieved in a way that is less restrictive of the person's rights and freedom. 

It must be assumed that an adult with learning disabilities has capacity until proven otherwise. The fact that a person has a diagnosis of a learning disability does not mean that they lack the capacity to make decisions of their own.

They must be given the information required to make informed decisions, even if they may seem to be unwise decisions. Adults with learning disabilities can be supported to understand information and communicate their choices through the use of reasonable adjustments.

Reasonable adjustments to support people’s understanding of information can include:

• use of pictures
• use simple words 
• avoid the use of jargon
• illustrations and role-plays
• sign language 
• involve a family/carer who is familiar with the communication needs of the person in the process
• allowing plenty of time to communicate and retain information
• check understanding by asking questions.

In England, if after all attempts have been made and it is found that the adult with learning disabilities lacks the capacity to make informed decisions relating to the intervention required, then a Best Interest Decision can be made by professionals involved in the care provision in partnership with the person’s family and others involved in their support. 

There may be some decisions where best interest cannot be agreed, or the intervention will require the person’s liberty to be deprived. These decisions may need to be referred to the Court of Protection. It is important to escalate situations where there is no agreement to ensure that the correct legal processes are followed and the best interests of the individual are protected.

Useful resources

• Mental Health Act 1983 (England & Wales).
• Mental Health (Care and Treatment) (Scotland) Act 2003.
• Mental Health (Northern Ireland) Order 1986.
• Office of the Public Guardian. Mental Capacity Act 2005: Code of Practice (England and Wales) (PDF).
• Mencap. The Mental Capacity Act.
• RCNi. Learning Disability Consent and Capacity.
• General Medical Council Ethical Hub. Learning disabilities. This ethical hub topic shows ways in which the GMC ethical guidance can be applied in this area of care and signposts to relevant resources. It does not set new professional standards and is not intended to replace the formal guidance.