Mental Capacity Assessment for ADRT England

Capacity Matters Twice

Mental capacity enters the ADRT process at two distinct points, and confusing the two is one of the most common mistakes families make.

The first point is when you create the ADRT. You must have capacity to understand the treatment refusals you are documenting. The second is when clinicians decide whether to follow the ADRT — they assess whether you now lack capacity for the specific treatment decision in question. If you still have capacity at the point of treatment, you make your own decision in real time and the ADRT is irrelevant.

Both assessments use the same statutory test under the Mental Capacity Act 2005, but they happen at different times, often years apart, and are conducted by different people.

The Two-Stage Test

Sections 2 and 3 of the Mental Capacity Act 2005 establish a two-stage capacity test that applies to every decision covered by the Act, including the creation and enforcement of an ADRT.

Stage 1 — the diagnostic question. Is there an impairment of, or a disturbance in the functioning of, the mind or brain? This could be a diagnosed condition like dementia, a learning disability, a brain injury, or the effects of drug or alcohol intoxication, delirium, or a severe mental health episode.

Stage 2 — the functional question. Does that impairment prevent the person from doing any one of these four things in relation to the specific decision at hand?

• Understanding the information relevant to the decision
• Retaining that information long enough to use it
• Weighing the information as part of the decision-making process
• Communicating the decision (by any means — speech, writing, sign language, blinking)

Failing any single element of stage 2 means the person lacks capacity for that particular decision. Critically, the assessment is decision-specific and time-specific. A person might lack capacity to manage complex financial investments but retain capacity to refuse a specific medical treatment on the same afternoon.

Who Conducts the Assessment

There is no single designated "capacity assessor" under English law. The Mental Capacity Act places responsibility on whoever is proposing or carrying out the relevant action.

When creating an ADRT, no formal capacity assessment is legally required. The Act does not mandate that a medical professional certify your capacity before you write the document. You simply need to have capacity at the time you make it — the statutory presumption under Section 1(2) is that you do.

However, the practical reality is more nuanced. If anyone later challenges whether you had capacity when you created the ADRT, contemporaneous evidence of your capacity can help answer that challenge. This is why many solicitors and charities like Compassion in Dying recommend having a GP or other medical professional involved in the signing process, particularly for people who:

• Have an early-stage cognitive diagnosis (Alzheimer's, vascular dementia, Parkinson's)
• Are on medication that affects cognitive function
• Have a history of mental health conditions that could be cited as grounds for challenge

A brief capacity assessment recorded in your GP notes at the time you sign the ADRT provides contemporaneous evidence of your capacity at that time.

When enforcing an ADRT, the treating clinician performs the capacity assessment. In a hospital setting, this is typically the consultant or registrar responsible for the treatment decision. They assess whether the patient currently lacks the capacity to make the specific decision about the treatment that the ADRT refuses.

The Presumption of Capacity

Section 1(2) of the Mental Capacity Act establishes a foundational principle: every adult is presumed to have capacity unless it is established otherwise. This presumption is not a formality — it has real teeth.

A person cannot be treated as lacking capacity simply because they make an unwise decision. Section 1(4) states this explicitly. If someone refuses life-sustaining treatment through an ADRT and that refusal strikes a clinical team as unwise, the refusal stands as long as the person had capacity when they made it and the document is valid and applicable.

Nor can capacity be assumed absent because of age, appearance, or a diagnosed condition. A person living with early-stage dementia is presumed to have capacity. The clinical team must actively assess and demonstrate that the person lacks capacity before overriding an ADRT.

What "Best Interests" Means and When It Applies

The "best interests" framework under Section 4 of the Mental Capacity Act only comes into play when a person has been assessed as lacking capacity and there is no valid, applicable ADRT covering the treatment in question.

If a valid ADRT exists and it applies to the treatment being proposed, clinicians must follow it. They do not conduct a best interests assessment — the ADRT replaces it. The document represents the person's own decision, made while they had capacity, and it carries the same legal weight as a contemporaneous refusal.

Best interests becomes relevant in gaps: treatments the ADRT does not cover, situations where the ADRT's applicability is disputed, or decisions that fall outside the document's scope entirely (care placement, daily living arrangements). In those gaps, clinicians must consider the person's past wishes, feelings, beliefs, and values — and this is where an Advance Statement (a non-binding document recording preferences) carries weight, even though it is not legally binding.

When Capacity Is Disputed

Disputes about capacity most commonly arise in two situations: challenges to whether the person had capacity when they created the ADRT, and disagreements about whether the person currently lacks capacity for the treatment decision.

Challenge to creation capacity. A family member or clinician argues that the person was already impaired when they signed the ADRT. If the person had a GP assessment recorded at the time of signing, that contemporaneous evidence may help address the challenge. Without that evidence, the dispute may require a Court of Protection application under Section 26(4) of the Act, where the court can determine whether the ADRT exists, is valid, or applies to the treatment.

Dispute about current capacity. The clinical team believes the person currently has capacity and can decide for themselves, while the family insists the person cannot. Or the reverse: the family believes their relative is lucid, while the clinical team assesses them as lacking capacity and wants to invoke the ADRT or make a best interests decision.

If there is genuine doubt about an ADRT's existence, validity, or applicability, Section 26(5) of the Mental Capacity Act allows clinicians to provide life-sustaining treatment or treatment reasonably believed necessary to prevent serious deterioration while the matter is resolved. This prevents the worst-case outcome — withholding treatment based on a disputed document — while the legal position is clarified.

Resolution may come from a second clinical opinion, involvement of the hospital trust's legal team, or ultimately an emergency application to the Court of Protection, which operates a 24-hour urgent applications process for life-sustaining treatment disputes.

Protecting Your ADRT from Capacity Challenges

The strongest defence against a future capacity challenge is evidence created at the time you sign the document:

1. Ask your GP to note in your medical records that they assessed your capacity on the date you signed the ADRT
2. Have the ADRT witnessed by someone who can later testify that you understood what you were signing
3. If refusing life-sustaining treatment, ensure the document includes the statutory "even if my life is at risk" declaration and is signed and witnessed in writing — both requirements for life-sustaining treatment refusals under Section 25(5) and (6) of the Act
4. Use precise clinical language in your treatment refusals rather than vague terms like "no heroic measures" that clinicians can argue do not apply to the specific treatment being proposed

Our ADRT drafting toolkit includes a GP consultation prep sheet and clinical phrasing templates designed to create exactly this kind of evidence, helping you close the gaps that capacity challenges exploit.

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