How to use
this tool

This tool is particularly relevant for people with mental health or mental capacity issues, and those who advocate on their behalf. It gives you tips on how you can identify whether an issue you have with your care or treatment is a human rights issue. It gives suggestions about how you can use human rights to overcome these challenges using real life examples.

The focus of this tool is on your human rights when you are receiving health and care services, e.g. at your GP, in hospital, community care, care homes etc. Most of the information will also apply to other situations like education, housing or involvement with the police, but please note that these areas are not specifically covered in this tool.

Mental health and mental capacity: what we mean

Mental health

We use the term ‘mental health’ to include anyone who may have a “disorder or disability of mind” (this is the definition in the Mental Health Act). This can include depression, dementia, eating disorder, autistic-spectrum disorders, behaviour changes caused by brain damage and personality disorders.

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Mental Capacity

Capacity is about your everyday ability to make decisions about what happens to you, including decisions about your care and treatment.

Your mental capacity can be impaired for a number of reasons, such as mental illness, learning disability, dementia, brain damage or intoxication.

The Mental Capacity Act sets out a test to assess whether you have capacity to make a decision. The test is if you are able to:

• Understand
• Remember
• Weigh up the pros and cons and communicate your decision

Capacity is task specific. This means:

• It focusses on the decision that needs to be made at the time.
• If your incapacity is temporary (for example if it’s due to being drunk) you can ask officials to wait until you are able to make a decision.
• If you lack capacity to make one decision it doesn’t mean that you lack capacity to make other decisions.
• Capacity can also change, so things need to be kept under review and your capacity re-assessed later on.

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Capacity: What about my human rights?

A public official should first think that you do have capacity to make a decision and, if they are not sure, they should do an assessment.

This is because of your human rights.

If it is decided that you do not have capacity to make a decision, a public official will make the decision for you. That person must make the decision in your best interest. This means the decision must be what is best for you, not for anyone else.

They should:

• Think about your human rights
• Consider your wishes and feelings
• Support you to be involved in decisions as much as possible