What it means to lack capacity to make a decision
  1. The law gives a very specific definition of what it means to lack capacity for purposes of the MCA 2005.  It is a test that derives from interplay between the law, ethics and medicine, [1]For the history of the test, see Ruck Keene, A., Kane, N. B., Kim, S. Y., & Owen, G. S. (2019). Taking capacity seriously? Ten years of mental capacity disputes before England’s Court of … Continue reading  but is ultimately a legal test, which can be applied by anyone and for which (in this context) the Court of Protection is the final arbitrator. 
  2. The test is set down in s.2(1) MCA 2005, [2]Referred to as the “core determinative provision” in PC and NC v City of York Council [2013] EWCA Civ 478 at paragraph 56. which provides that: 

‘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 the brain’

Applying the capacity test

The Supreme Court in A Local Authority v JB [2021] UKSC 52 has made clear that you need to start by asking with whether the person can make the decision for themselves. Applying the Supreme Court’s approach makes clear that the test is best broken down into three questions you need to be able to answer:

  1. Is the person able to make the decision for themselves? 

If there are legitimate doubts about this then,

  1. Is there an impairment or disturbance in the functioning of the person’s mind or brain? 

And if there is an identified impairment or disturbance then,

  1. Is the person’s inability to make the decision because of the identified impairment or disturbance?


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Footnotes

Footnotes
↑1 For the history of the test, see Ruck Keene, A., Kane, N. B., Kim, S. Y., & Owen, G. S. (2019). Taking capacity seriously? Ten years of mental capacity disputes before England’s Court of Protection. International journal of law and psychiatry, 62, 56-76.
↑2 Referred to as the “core determinative provision” in PC and NC v City of York Council [2013] EWCA Civ 478 at paragraph 56.