The 2 stage test and the 5 principles of the Mental Capacity Act

Assessing Mental Capacity

When speaking with solicitors and members of the public we are regularly asked about the 2 stage test. Below, Tim Farmer sets out the 2 stage test and the 5 underlying principles.

The 2-stage test

-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).

The five principles

1) The presumption of capacity - every adult has the right to make his or her own decisions and must be assumed to have capacity to do so unless it is proved otherwise

2)  People must be given all appropriate help before anyone concludes that they cannot make their own decisions

3)  That individuals retain the right to make what might be seen as eccentric or unwise decisions

4)  Anything done for or on behalf of people without capacity must be in their best interests

5)  Anything done for or on behalf of people without capacity should be an option that is less restrictive of their basic - as long as it is still in their best interests.

1 comment to 'The 2 stage test and the 5 principles of the Mental Capacity Act'


17 November 2014 at 07:29

this is all so confusing...all i know is,i have been caring for my mum at home for 12 years...she is in hospital now waiting to be assessed as to wether she can come home or go into care (waiting 7 weeks so far)..they say she has dementia,,but we have normal conversations nearly every day when i visit her...she wants to come home with me,and i want her home..i dont have p o a...have i or she no rights at all in this matter.,when i told staff i wanted to discharge her against medical advice,they threatened to call the police.,,,,,,baffled and confused.


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