(1): Is the person able to make a decision?

1. Starting with the question of whether the person is able to make the decision for themselves is important.  The Supreme Court has confirmed that it is what the law requires. It is also important because if you start with the question of whether the person has an impairment or disturbance: 

• (a) There is a danger that you will mentally ‘tick off’ the presence of an impairment or disturbance and then will not sufficiently question whether that impairment or disturbance is actually causing the inability to make the decision;[1]This risk was identified by the Court of Appeal in PC at paragraph 58. 
• (b) Linked to this, there is also a risk that the structuring perpetuates the discriminatory approach to those with mental disorders, as it essentially loading the capacity assessment against them by ‘pre-filling’ the first element of the test.   For example, it makes it – subconsciously – easier for you to move from thinking ‘this person has schizophrenia’ to concluding ‘this person lacks capacity to make [X] decision.’ 
• (c) Focusing on what it is thought that the person is functionally unable to do means that support can be targeted appropriately, for instance to help them understand the information relevant to the decision, or to use and weigh it.  If, with that support, the person is able to make the decision, there is then no need to go further: they have capacity to make it.   

2. That having been said, depending upon the circumstances, it may be that more focus needs to be placed upon either the causal impairment or the functional test – for instance – if P is in a psychiatric ward with a clear diagnosis of a mental disorder, then it may be that more attention is required to considering whether that disorder means that they are unable to take the specific decision in question. 
3. In all cases, though, all three elements of the single test must be satisfied in order for a person properly to be said to lack capacity for purposes of the MCA 2005. 
4. Before looking at each of these elements in turn, it is important to unpick one consequence of the fact that the test contained in ss.2-3 MCA 2005 is a legal one which has to be applied in real life.   The test contains very broadly defined functional abilities – for instance “to use” information.   However, it is rarely enough simply to leave it that – either in terms of thinking about the person’s abilities or in recording your conclusions.   Put another way, it is important always to be able to explain why a person’s particular difficulties mean that they do not have one (or more) of the functional abilities required of them by s.3 MCA 2005.  
5. In doing this, we suggest that it may be useful to draw upon the typology that was developed by the MHJ project. This typology illustrates how the Court of Protection judges (drawing upon the experts appearing before them, the other evidence they have had, and interpreting the language of the MCA 2005) have sought to explain why a person cannot do one or more of things required of them under the MCA 2005.    The typology classifies these ‘explanatory rationales.’   
6. There are nine categories of ‘explanatory rationales’ in the typology, or nine types of decision-making problem used to explain whether a person is deemed to have or lack capacity for the specific decision. These are the ability or inability:
   • (1) To grasp information
   • (2) To remember 
   • (3) To imagine or abstract 
   • (4) To appreciate 
   • (5) To care or value
   • (6) To think through a decision non-impulsively
   • (7) To reason
   • (8) To give coherent reasons
   • (9) To express consistent preferences
7. The typology serves two purposes: 
   • It will enable you to probe in more detail what the problem might appear to be, and – importantly – to provide the person with support to assist them with that problem area;
   • When starting from the clinical phenomena, using these ‘explanatory rationales’ will (a) enable you to be more transparent and accountable in explaining your reasoning;[2]See further here on explaining your reasoning. (b) enable you to be confident that you are thinking in ways which are legally defensible.   The MHJ team have, in a separate article, suggested that there are ways some of the explanatory rationales should be used and linked to particular functional abilities. 

8. The typology also suggests that there are certain types of decision-making problems that are more associated with particular conditions.  This may be useful for alerting you to particular problems (and, in turn, particular ways of questioning or probing[3]Although designed for lawyers, The Advocates Gateway also includes helpful tools for framing questions for people with particular communication needs: Home – The Advocate’s Gateway … Continue reading) associated with particular conditions. However we strongly caution against using it as a tool to single out people with particular conditions as automatically having those problems with decision-making. 
9. Taking the law and court practice as guidance, we look at each of the functional limbs of the test in turn, and explain how the typology may help in application.

Is P able to understand the relevant information?

10. The courts have repeatedly emphasised that the level of understanding required must not be set too high.[4]PH and A Local Authority v Z Limited & R[2011] EWHC 1704 (Fam).
11. Further, you must not start with a ‘blank canvas.’ In other words, you must present the person you are assessing with detailed options so that their capacity to use and weigh those options can be fairly assessed.[5]CC v KK & STCC [2012] EWHC 2136 (COP).   This is particularly important where a person’s particular impairment may make it more difficult for them to envisage abstract concepts.  But it is also important to give the person sufficient information about the options that they are being asked to choose between that they are given the opportunity to understand (if they are capable of doing so) the reality of those options.   In other words, and to take a common example, you should not simply seek to assess a person’s ability to decide between living at home and living in a care home in the abstract, but rather by reference to what continuing to live at home would be like (for instance, what care package would the relevant local authority provide) and what living in an actual care home would be like. [6]CC v KK & STCC [2012] EWHC 2136 (COP). 
12. The ability to understand also extends to understanding the reasonably foreseeable consequences of reaching a decision or failing to do so (s.3(4)).    
13. The inability to understand has been associated with specific explanatory rationales in the courts.   For more on this, see here.

Is P able to retain the relevant information?

14. We repeat the need to be precise about the information in question. 
15. P needs to be able to retain enough information for a sufficient amount of time in order to make a decision. The Act specifies at s.3(3), however, that ‘the fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.’ 
16. This is an important consideration, particularly when dealing with the elderly or those with deteriorating memories. Capacity is the assessment of the ability to make a decision ‘at the material time.’  If information can be retained long enough for P to be able to make the relevant decision at the relevant time, that is sufficient, even if P cannot then retain that information for any longer period.   
17. The inability to retain has been associated with specific explanatory rationales in the Courts. For more on this, see here.

Is P able to use or weigh the relevant information?[7]Note that the statutory requirement is that P must be unable to use or weigh the relevant information.   In practice, the two terms are usually used together, so we also refer here to “use and … Continue reading

18. Again, it is necessary to be clear what the information is (and how it is said to be relevant to the decision).   As with understanding, it is not necessary for a person to use and weigh every detail of the respective options available to them, merely the salient factors.  Therefore, even though a person may be unable to use and weigh some information relevant to the decision in question, they may nonetheless be able to use and weigh other elements sufficiently to be able to make a capacitous decision.[8]Kings College NHS Foundation Trust v C and V [2015] EWCOP 80 at paragraph 37.
19. It is particularly important here to be aware of the dangers of equating an ‘irrational’ decision with the inability to make one – P may not agree with the advice of professionals, but that does not automatically mean that P lacks capacity to make a decision.[9]“there is a space between an unwise decision and one which an individual does not have the mental capacity to take and … it is important to respect that space, and to ensure that it is preserved, … Continue reading  For example, a religious belief in faith healing or a religious belief that blood products cannot be accepted as treatments will not necessarily be found to reflect inability to use or weigh health information due to an impairment of disturbance.
20. Further, if a person is able to use and weigh the relevant information, the weight to be attached to that information in the decision making process is a matter for that person.[10]Kings College NHS Foundation Trust v C and V [2015] EWCOP 80 at paragraph 38.   This means you need to be very careful when assessing a person’s capacity to make sure – as far as possible – that you are not conflating the way in which they apply their own values and outlook (which may be very different to yours) with a functional inability to use and weigh information.  This means that, as much as possible, you need as part of your assessment – your conversation with P as well as other sources of information –  to glean an idea of their values and their life story as it relates to the decision in question.   
21. The inability to use and weigh has been associated with specific explanatory rationales in the courts.  For more on this, see here.

Is P able to communicate their decision?

22. It is very important to understand how this limb of the test works.  It presupposes that the person has been able to make a decision: in other words, that they have been able to understand, retain, use and weigh the relevant information – the problem is that they cannot communicate the decision that they have made.  It is therefore a limb of the test which only applies to a very limited group of people, for instance those with locked-in syndrome who may, despite all practicable steps, be unable to communicate.  
23. If, therefore, the person appears unable to understand, retain, use or weigh relevant information, but is nevertheless seeking to communicate something, then: 

• The record of your assessment should not say that they are unable to communicate their decision – it should say that they are unable to make a decision, and what they are communicating are wishes and feelings; 
• You should take into account what they are communicating for purposes of constructing the best interests decision: see further the 39 Essex Chambers guide to this process here. 

24. See further here for the way in which this rationale has been considered by the courts. 
25. Any residual ability to communicate the decision is enough, so long as P can make themselves understood. This will be an area where it is particularly important to identify (and to demonstrate you have identified) what steps you should be taking to facilitate communication: for instance, reproducing as best as possible the manner by which they usually communicate, providing all necessary tools and aids, and enlisting the support of any relevant carers or friends who may assist with communication.

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