The entry into force of the Mental Capacity Act 2005 heralds a new approach to capacity, which is to ensure that those who suffer from disability shall be assisted to live normal lives and to make choices about those lives to the greatest extent possible.
The old approach to capacity under the Mental Health Act 1983 took a more generic approach to the question of capacity – whereas the new approach requires a person’s capacity to be assessed on specific basis having regard to whether that person lacks capacity at that time and in respect of that particular decision.
Capacity is assessed in terms of whether the individual is unable to make a decision as a result of an impairment or disturbance in the functioning of the mind or brain. Indeed, Section 2 (1) of the Mental Capacity Act 2005 provides:
"[F]or the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain".
Chapter 4 of the Code of Practice sets out guidance on how to assess capacity.
(Stage 1) ‘diagnostic test’
First, an assessment needs to be made as to whether there is an impairment in the functioning of the mind. The approach is referred to as the ‘diagnostic test’, which requires evidence of a condition that can be shown to impair functioning such as to render the individual unable to make the decision (Section 2 (1)). This test should be applied at the time the decision is to be made without regard to whether the condition is permanent or temporary (Section 2 (2)). In addition to this, the assessment must be with reference to objective criteria rather than on assumptions drawn from appearance or prejudicial assumptions about that condition (Section 1 (3)).
(Stage 2) ‘functional test’
Secondly, an assessment needs to be made as to whether a person is unable to make a decision about a specific matter and therefore lacks capacity in relation to that specific matter. This is referred to as the functional test.
Indeed, the Code of Practice (Chapter 4.4) states:
"[A]n assessment of a person’s capacity must be based on their ability to make a specific decision at the time it needs to be made, and not on their ability to make decisions in general."
There are four criteria set out in the Mental Capacity Act (section 3) as to why a person may not be able to make a decision. The criteria relates to whether the person is able to:
- comprehend the information relevant to the decision (which requires the information to have been presented to that person in a way appropriate to their circumstances)
- retain this information for long enough to make the decision (with the fact that the period of retention may be short is irrelevant to this consideration)
- use and weigh the information to arrive at a choice (which requires an understanding of the consequences of making a decision one way or the other, or of failing to make a decision)
- communicate the decision
An inability to fulfil one of these criteria will result in a finding that the person is unable to make a decision, subject to the proper application of all the principles of the Act.
The recent case of Saulle v Nouvet  EWHC 2902 has provided useful clarification of the approach to capacity in civil litigation, with an indication that the statutory definition in Mental Capacity Act 2005 is to be preferred – notwithstanding the suggestion in the Code of Practice that the common law approaches to capacity would not be replaced (at paragraph 4.33).
In that case the Court had regard to the diagnostic and functional tests with regard to the key principles set out in Section 1 (2 - 4) of the Mental Capacity Act 2005, as follows:
(2) A person must be assumed to have capacity unless it is established that he lacks capacity.
(3) A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
(4) A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
Any party asserting incapacity with reference to these principles, bears the burden of doing so on the balance of probabilities (Section 1 (2)).
Prior to a finding of incapacity, all practicable steps will need to be taken to ensure that the individual is assisted to understand decisions (Section 1(3). In practical terms this means that there should be no finding of incapacity in the absence of evidence that all practicable steps have been taken to assist the individual take decisions, and that such steps have been unsuccessful.
In addition to this, the principle of autonomy indicates that an inability to make decisions is not to be conflated with ‘unwise decisions’ (Section 1 (4)). In practical terms this means that a finding of incapacity will require more than evidence of unwise decisions. However, the Code of Practice (Chapter 2.11) does indicate that there may be issues where the ‘unwise’ decisions could be classified as irrational or otherwise cause concern.
Below is an article on assessing capacity written by Eve Piffaretti for Practice Management magazine in September 2007