What is the test for capacity?

I am often asked about capacity and the test required to make decisions. A medical practitioner will consider whether a person has an impairment or disturbance in the functioning of the brain, for example, a long term condition such a dementia or brain injury, or a short term impairment, for example, as a result of an injury. The legal test for capacity will consider whether the impairment/disturbance affects the person’s ability to make a specific decision.

For decisions other than writing a Will, the relevant test is set out in The Mental Capacity Act 2005. This holds that a person in unable to make a decision for himself if he is unable to:

1. Understand the information relevant to the decision. A relevant point here is that the information must be provided in a way that they can understand and the person must be able to understand the nature of the decision, why the decision is needed, and the likely effects of deciding one way or another or doing nothing at all.
2. The person must be able to retain that information. The person must be must be able to remember information long enough to make the decision (this will depend on the decision in question). Even if a person can only retain the information for a short period, this will not prevent them from being deemed to have capacity to make the decision.
3. The person must be able to use or weigh that information as part of the process of making the decision or must be able to understand the reasons for/against making a decision.
4. The person must be able to communicate his decision (whether by talking, using sign language or any other means).

In summary, therefore, to have the requisite capacity, a person should be able to explain the information provided to them that is relevant to the decision, retain that information, and use that information to consider the reasons for and against making a decision. They must also be able to understand the specific decision that needs to be made and why it needs to be made. The level of capacity required will therefore depend on the type of decision. A person could have capacity to make some decisions, but may not be able to make more complex decisions. For example, deciding whether to go to the shops at the weekend will require a lower level of capacity compared to making key financial decisions. If a medical practitioner is carrying out an assessment regarding capacity, it is important to explain the decisions that are required and their complexity.

If you have concerns about capacity or would like to discuss any of the issues raised, please feel free to contact me on victoria.riddleston@ellisjones.co.uk or 01202 057768.