Testing for capacity

It is surprising (and perhaps somewhat worrying) that many mental capacity assessors are not fully aware of the correct test or tests for mental capacity. I was speaking to a GP only yesterday who was telling me about his recent assessment of a client’s capacity to make a Will. Unfortunately he had never heard of Banks v Goodfellow (1970) and had made his assessment without reference to this preferring instead to use a combination of the MCA and the mini mental state exam!

Whilst the 2 stage test, as outlined in the Mental Capacity Act is the most commonly used test, it is vital that assessors are aware of the various categories that it doesn’t cover, as well as the correct tests to apply in place of, or in conjunction with it.

The 2 stage test

For sake of clarity, I have outlined the 2 stage test below and some of the areas that are not covered by it.

In order to assess capacity, the following 2-stage test must have been followed.

  • Is there an impairment of or disturbance in the functioning of the person’s mind or brain?
  • Is the impairment or disturbance sufficient that the person lacks the capacity to make that particular decision?

The second stage of the test (or functional test) dictates that the person is unable to make a decision if they cannot;

1. Understand information about the decision to be made.

2. Retain that information in their mind.

3. Use or weigh-up the information as part of the decision process.

4. Communicate their decision.

If a person lacks capacity in any of these areas, then this represents a lack of capacity (Mental Capacity Act 2005: Code of Practice).

What is not covered by the Mental Capacity Act?

Whilst the MCA (2005) covers many areas there are a number which are deemed to fall outside of the Act and are instead governed by existing common and case law. Those identified within the Act itself are;

  • Marriage and Civil partnerships
  • Divorce
  • Sexual relationships
  • Placing a child up for adoption
  • Taking over parental responsibility for a child
  • Consent to fertility treatment
  • Voting
  • Detention or treatment of people under the Mental Health Act

There are of course other decisions that are not covered solely by the MCA such as Testamentary capacity and capacity to litigate- to name just two.

Understanding the limitations of the Mental Capacity Act is as important as understanding the practicalities of actually assessing.

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