When does someone lack capacity?
Issues of capacity are complex.
The starting point in law is that a person is presumed to have capacity unless it is proven otherwise. Section one of the act states that a person must be assumed to have capacity unless it is established that he/she lacks capacity.
Critically, questions of capacity are not black or white. The act makes it clear that issues of capacity are both time restricted and also restricted by way of matter, what this means is that a person can have capacity to make a decision one week then lose that capacity a couple of weeks later and regain it later, it also means that a person can have capacity to make some decisions and lack capacity in others. For example, a person can have capacity to make a decision in relation to where she wants to be placed but lack capacity to make decisions in relation to his or her finances.
There is a two-stage test for assessing capacity known as the diagnostic and functional tests. Only once both limbs of this test proven can be said person lacks capacity to make a certain decision.
Firstly, to fulfil the diagnostic assessment it has to be established that the individual has an impairment or disturbance in their functioning of the mind.
Secondly, it has to be established that functionally the person's ability to make a specific decision at a specific time is impaired and that no appropriate steps can be put in place to enable that person to come to a decision which is not polluted by their impairment. There are four stages which must be successfully undertaken by the person in question if he has capacity:
- Understand the information relevant to the decision
- Retain the information relevant to the decision being made, long enough to make the decision
- Use or weigh up the information to make a decision and
- Communicate the decision (by any means)
The act makes it clear that a person can only be treated as unable to make a decision until all practical steps to help him/ her to do so have been taken without success.
A decision can only be reached once all tools are used to assists the individual in making a decision. Further, a person should not be presumed to lack capacity because the individual makes a decision which is unwise. Of course, if the decision is so irrational that no reasonable person could have ever made such a decision it could indeed be evidence of incapacity