To communicate

In court practice, the MCA criterion “to communicate” was most frequently linked to the ability “to express a stable preference” and the ability “to grasp information or concepts.”  However, these links were often artefactual, e.g., the judges often tended to recite two or more MCA criteria together as a turn of phrase.   In some cases, the rationale given was “upstream” of the MCA criterion, e.g. “[P] was unable to assimilate the information [upstream inability to remember] that I had given her in order to communicate [MCA criterion] an opinion of the LPA.”   In such a situation, that she cannot communicate her decision is true but superfluous (as she has been unable to make a decision to communicate, because she cannot retain the relevant information).

Recommendation – care should be used with the criterion to check that it is actually doing any analytical work and not simply relying true but superfluous information.   The legislative history of the criterion “to communicate” suggests that it should only be used for a narrow category of cases such as locked-in syndrome, where the person is cognitively unimpaired but unable to communicate their decision to anyone else.  The courts seem, however, to have broadened the criterion to also to include the situation where the person is unable to provide a stable preference: in such a situation, the assessor does not have access to the person’s real choice.   In any situation, further probing should be done to see whether another rationale is not a better explanation for the apparent inability to express a choice.  See here for further discussion.

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