Mental Capacity Act
The test of capacity
The Mental Capacity Act 2005 was enacted on 2nd April 2007. A key element is the test of capacity. This is essential in ensuring that people who lack capacity are protected.
There is a two-stage test of capacity in order to decide whether an individual has the capacity to make a particular decision, this test must be applied.
- Is there an impairment of, or disturbance in the functioning of a person's mind or brain? if so
- Is the impairment or disturbance sufficient that the person lacks the capacity to make a particular decision?
It is essential that the decision makers uphold the principles of 'equal consideration'. The Act is clear that there should not be assumptions made about an individual's lack of capacity based on either their age or appearance or condition.
If the first stage of the test of capacity is met, the second test requires the individual to show that the impairment or disturbance brain or mind prevents them from being able to make the decision in question at that time.
The Functional Test
This is a functional test focusing on how the decision is made, rather than the outcome or the consequence of the decision.
- To understand the information relevant to the decision,
- To retain that information,
- To weigh that information as a part of the process of making a decision,
- To communicate his/her decision (whether by talking, using sign language or any other means).
This test must be complete and recorded; the documentation must demonstrate the above process.