What is a mental capacity assessment at 16?

A mental capacity assessment checks whether a young person 16 or over can make a particular decision for themselves. Under the Mental Capacity Act 2005 capacity is assumed, so it is only done where there is real doubt. The law starts from the position that your 16-year-old can decide, and it puts the burden on anyone who thinks otherwise to show it, not on your child to prove they are capable (Mental Capacity Act 2005, s.1).

Why this comes up at 16

From the end of the academic year in which your child turns 16, the SEND Code of Practice says the right to make decisions and requests about their Education, Health and Care plan (EHCP), and the right to appeal to the SEND Tribunal, passes to the young person directly rather than to you as their parent. There is one exception: where the young person lacks the mental capacity to make that particular decision. That is the moment a capacity assessment can be raised, so that the right ends up with the person who can actually use it.

It is decision-specific, not a global label

This is the part most parent-facing pages get wrong. A capacity assessment is decision-specific and time-specific. It looks at one decision at one moment, not at your child as a whole. A young person can have capacity for some decisions and not others, and their capacity can change over time. Just as importantly, the law says capacity can never be ruled out simply because of someone's age, appearance, or a condition such as a learning disability or autism (Mental Capacity Act 2005, s.2). Having SEND is not a reason to fail the test.

What the assessment actually checks

A young person is treated as unable to make a decision only if, after being given all practical help, they cannot do one or more of these four things (Mental Capacity Act 2005, s.3):

• Understand the information relevant to the decision;
• Retain that information long enough to decide;
• Use or weigh it as part of making the decision;
• Communicate their decision, by any means.

Alongside that, there has to be an impairment of, or disturbance in, the working of the mind or brain. It is usually a social worker or another suitable professional who carries the assessment out. If the young person is found to lack capacity for the decision, you or another representative can step in to make it (or to appeal) on their behalf, but they must still be involved and supported to take part as far as they possibly can.

For what changes again at 18, see whether you still make decisions after your child turns 18, the council's duties when a young person turns 18, and what deputyship is for a young adult who lacks capacity.

This page is general information, not clinical or legal advice.