Assessing capacity of someone with FASD by an approved 'FASD Informed' Professional is vital... why?

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​There are certain decisions an individual can only agree to if they have mental capacity. Other decisions can only be made on someone’s behalf if they are assessed as lacking mental capacity.

 

It is often confusing to work out whether someone has mental capacity. The MCA applies to people aged 16 and over.

 

The MCA starts with the assumption that everyone has mental capacity and if an individual is struggling, then they should be helped to make their own decision rather than have the decision made for them.

 

Making an unwise decision doesn't mean someone lacks capacity. Under the MCA, a person lacks mental capacity if they cannot do 1 or more of the following:

 

• understand the information relevant to the decision

• retain that information for long enough to make the decision

• use or weigh up that information as part of the process of making the decision • communicate their decision in any way

 

Even if someone is deemed to lack full capacity, those making decisions on their behalf must act in their best interests, and their wishes, aspirations and views should be considered and included in any best interests meeting.

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Who carries out assessments under the Mental Capacity Act?

 

The Act is designed to empower those in health and social care to assess mental capacity themselves, rather than rely on expert assessments by psychiatrists or psychologists.

 

Although, in cases involving complex or major decisions, a professional opinion from a GP, a consultant psychiatrist or psychologist is often appropriate.

 

All assessors should consider the Mental Capacity Act 2005 Code of Practice (the Code) and the NICE Guidelines On Decision Making And Mental Capacity (the Guidelines).

 

4.51 of the Code states that if the person has a particular condition or disorder, it may be appropriate to contact a specialist (for example, consultant psychiatrist, psychologist or other professional with experience of caring for patients with that condition).

 

Contact your local FASD Alliance for details of FASD trained clinicians local to you.

 

Assessments of capacity are time and decision-specific. So, a person may lack capacity in one area, like managing finances but have capacity in other areas. This means that different people will be involved in assessing someone’s capacity to make different decisions at different times.

 

If there is a disagreement, the Court of Protection will decide whether a person has mental capacity and the person who is challenging the assessment can apply directly to the Court of Protection by submitting expert evidence using a COP3 Form.

 

You do not need a solicitor, but you may want to seek legal guidance. Capacity and needs assessments for individuals with FASD as your young adult transitions into adulthood there may be various assessments of need and capacity.

 

This may be a formal transition assessment or a mental capacity assessment for an LPA, or it could be what seems like an informal ‘chat’ by social services for supported living.

 

Often, these capacity assessments and needs assessments are carried out by social service safeguarding teams, the police, government agencies (such as the DWP), and even professionals, (such as GPs) who have no, or very little understanding of FASD.

 

Assessors often do not have the skills or experience or knowledge to dig deeper to recognise that abilities are often superficial, and as a result may not accurately assess capacity, especially if your young adult is articulate and comes across as capable. For example, your teenager may be able to physically cook, clean, wash, book an appointment, self-medicate, but ONLY by being adult led and supervised and when being engaged.

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Lived-experience shows that the ’hidden’ nature of FASD can sometimes lead to significant risk to individuals with FASD as the ‘experts’ deem a teenager with FASD to have capacity in situations where they may not.

 

The individual may be left in a vulnerable situation without the support they need and the carers may be accused of being overbearing. Those who carry out capacity and needs assessments on individuals with FASD should have specific training to understand the nuances of the disorder and interpret behaviours accurately.

 

You should refer the assessor to your local FASD UK Alliance organisation for input if they are not appropriately trained in FASD and they need support.

 

Deprivation of Liberty

 

The liberty of an adult aged 18 and over can only be taken away in very specific situations.

 

The MCA calls this a ’deprivation of liberty’. Being deprived of liberty means that someone is prevented from doing anything without continuous supervision. A deprivation of liberty should only be used if it’s the least restrictive way of keeping someone safe.

 

If an individual aged 18 and over is in a hospital or care home, liberty can normally only be taken away if health professionals use the procedures called the Deprivation of Liberty Safeguards (DoLS) which provide a legal framework to balance the need for care and treatment with the fundamental right to freedom and autonomy.

 

If an individual is aged 16 or over, lives at home, in supported accommodation or in a shared lives placement it is only the Court of Protection who can decide to deprive someone of their liberty. The Court will appoint deputies to act on the individual’s behalf if they are unable to make decisions about personal health, finance or welfare.

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Written by Velma Eyre. This fact sheet is for information only and is not intended to constitute legal advice. (May 2025)

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