Mental capacity is the ability to make a decision (Code of Practice para 4.1), and is time and decision/ issue specific. A fundamental aspect for Court of Protection to have jurisdiction, is that the person must be deemed to lack capacity to make the relevant decision. There are five key principles that form the basis of the Act. The first principle is the presumption of capacity. This means P is assumed to have capacity unless it is established that he/she does not (s.1(2) Mental Capacity Act 2005 (MCA)). In identifying whether the individual does lack capacity, there is a two stage test as set out in the MCA at s2(1) and s3(1).
Section 2(1)
“For the purposes of this Act, 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 a disturbance in the functioning of, the mind or brain.”
Section 3(1)
“For the purposes of section 2, a person is unable to make a decision for himself if he is unable—
(a)to understand the information relevant to the decision,
(b)to retain that information,
(c)to use or weigh that information as part of the process of making the decision, or
(d)to communicate his decision (whether by talking, using sign language or any other means).”
The above tests, are often referred to as the Diagnostic Test, and the Functional Test:
1. Diagnostic Test (Is there an impairment of or disturbance in the functioning of the mind or brain).
2. Functional test (Does the impairment mean that the person is unable to make a specific decision when they need to).
Only when you can reasonably say that the person cannot make the decision because of the impairment or disturbance of their mind or brain, can you say that they lack capacity to make the decision. This is called the “causative nexus” which is an essential part of any mental capacity assessment and was established in the case of PC and NC v City of York Council [2013] EWCA Civ 478.
Capacity is domain specific and a person deemed to lack capacity in one domain does not mean that they lack capacity in another domain. Some common domains in the Court of Protection include whether a person has capacity to make decisions in relation to:
- Conducting proceedings.
- Residence.
- Care and treatment.
- Contact.
- Sexual relations, marriage, contraception, reproduction etc.
- Medical treatment.
- Social media usage.
- Alcohol consumption.
- Hoarding.
These domains will be discussed separately throughout different articles.