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01st October 2015

Testing Times

Testing times

The Mental Capacity Act

Previously, I’ve written on how we use the Mental Capacity Act in order to make a decision in someone’s best interests, where we believe the person lacks the capacity to make that decision themselves. Such decisions can range from what to wear today, to where shall one live.

The Mental Capacity Act (and the Adults with Incapacity Act in Scotland) includes a test for deciding whether someone has the capacity to make a particular decision. However, applying that test is quite a skill. I’ve been looking at some case law judgements, where judges have added some useful comments as to how they think the test should be properly applied.

Applying the test

First a reminder of the test – it’s in two parts. The first part is to determine whether the person has an impairment in the functioning of the mind or brain.  The second part is whether that results in the individual not being able to understand the decision to be made, to be able to retain the necessary information to make the decision, to weigh up the information in order to make the decision, and then communicate their decision. If they can’t do all of these then we say the person is lacking the capacity to make the decision. Now carrying out this test isn’t easy. We have to take a view on the balance of probabilities.

Getting it right

So here are some pointers from a couple of case law judgements:

  • The case of CC v KK 2012, showed a person might minimise some of their care needs, but that doesn’t mean they are completely unrealistic, and they can balance the pros and cons of a particular decision. The judge in this case said that different people provide different weight to different factors, perhaps giving more importance to emotional happiness, than physical safety, and there’s nothing wrong with that. In this case the judge also said that people should be given all possible information to help them weigh up a decision, and not just given a narrow choice.
  • In the case of PH and a Local Authority 2011, this heard evidence from a very eminent clinician about the person’s capacity. The judge in this case did not accept this view. He gave greater weight to the evidence of doctors and a social worker, who thought they were less expert in the field of psychiatry, had a wide range of knowledge and experience, and greater knowledge of the patient. The message from this is the worker who knows the person best, may well be the best person to apply the test for capacity.

David Beckingham – QCS Expert Mental Health Contributor

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