The law gives a very precise definition of what it means to lack capacity for the purposes of the MCA 2005. Section 2(1) of the MCA 2005 provides that;
“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 disturbance in the functioning of the mind or brain”
This definition gives rise to a two-limbed test. The first limb being whether P is unable to make a decision for himself (The Functional Test) and the second being whether that inability is because of an impairment of, or a disturbance in the functioning of the mind or brain (The Diagnostic Test). The starting presumption is always that P has capacity to make that decision and this is fundamental to the Act.
Capacity is decision specific and so although P may have been assessed as lacking capacity to manage their property and affairs which requires the appointment of a deputy, it does not necessarily mean they lack capacity to manage all aspects of their finances. For example, they may be able to make day to day spending decisions but may lack capacity to make more complex decisions such decisions around investments.
Therefore, in order to comply with the MCA the test of capacity will need to be applied to each individual decision and a Deputy making decisions on behalf of P must be satisfied that they have taken all reasonable steps to help P make the decision for themselves, before making a decision on their behalf.
It is not necessary for P to understand every element of what is being explained to them. What is required is a broad understanding and the level of that understanding should not be set too high.
In addition, people who have capacity often make unwise decisions and it is important that a protected party’s freedom to do the same is also not restricted This is a fine balancing act and it is important to be aware of the dangers of associating an unwise decision with the inability to make a decision.
An example of this may be where P does not agree with a professional opinion. This does not necessarily mean that P lacks capacity to make the decision. What would need to be considered here is whether P can weight up, use the information and understand the consequences of their decision making.
Most healthcare professionals will be able to carry out a capacity assessments which is decision specific. They will do so applying the test and principles set down in the MCA. Each assessment is unique and will be carried out specific to P’s circumstances.
It may be the case that another healthcare professional, such as a social worker will know P better than a GP or Consultant. As such they may be in a better position to provide a more thorough capacity assessment. Failure to carry out a detailed capacity assessment can expose substantial risks therefore it is of paramount importance that the principles are applied correctly and the assessment is carried out by the most appropriate person available.
For reference, the core principles of the Mental Capacity Act are as follows;
s.1(2): P must be assumed to have capacity unless it is established that he lacks capacity;
s.1(3): P 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;
s.1(4): P is not to be treated as unable to make a decision merely because he makes an unwise decision;
s.1(5): an act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests; and
s.1(6): before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.