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.