In the tenth and final part of our blog series on the proposed changes to the MCA Code of Practice, we look at other legal tests of Mental Capacity, plus the use of Retrospective Assessments
Other legal tests of Mental Capacity
Prior to the Mental Capacity Act coming into law, a number of common law tests of Mental Capacity for specific situations came into being. These were formed in order to protect choices, uphold rights and reduce risk of litigation and cover situations such as:
- Mental Capacity to marry
- Mental Capacity to litigate
- Mental Capacity to form a contract
- Mental Capacity to gift items of value/sums of money
- Mental Capacity to make a Will
In each of these situations a professional would make use of a form of Mental Capacity Assessment quite similar to those that we use more commonly as a part of the Mental Capacity Act. The main difference being that the usual consideration of Best Interest decision(s) after the Assessment would not apply. Rather, if the individual lacks the Mental Capacity to complete one of these decisions, it would proceed to the Court of Protection.
We can see examples of how common law tests align very closely with the Mental Capacity Act. For example, in the case of Mental Capacity to make a Will, this is directed by the judgement of Banks v Goodfellow (1870), as confirmed by Clitheroe v Bond (2021). This case of law stipulates that the individual making a Will (testator) must be able to:
- understand the nature of making a will and the effect of doing so
- understand the extent of the property they dispose of in their Will
- appreciate those persons they would normally be expected to provide for
They must also be:
- free from any mental disorder that prevents the exercise of their natural faculties when making their Will
Therefore, the individual must be able to understand, retain and apply the relevant knowledge of what a Will is, in context of their own individual circumstances. They must also be able to recognise and weigh up the decision of who is included or excluded, including within the roles assigned. They therefore need to have Mental Capacity to complete the decision.
A Retrospective Assessment is a Mental Capacity Assessment that is carried out in retrospect, if there arises any doubt as to whether an individual had sufficient capacity at the time of making a specific decision.
In the proposed new MCA Code of Practice, Chapter 4 outlines five key points covering Retrospective Assessments and how they should be conducted.
The key element is the use of records as part of a critical professional assessment. This reminds us of the importance of detailed and appropriate decision-making that proactively makes use of the five principles of the MCA – recording if and how consent was provided, examples of what has been stated, and details relating to an individual’s mental state.
Of course, there will be some cases where Mental Capacity will have to be retrospectively assessed without the use of formal records. These may be in Court of Protection, High Court, or safeguarding cases. In these situations it is vital to go back to the basics of what questions an assessor would have asked and what evidence is available for the individual’s answers at that specific time.
It is important to remember that the Mental Capacity Act starts from a position in which we much presume capacity on the part of an individual being assessed. The same is also true of Retrospective Assessments, in which the balance of probabilities must be applied while making use of all available evidence and considering the specific question at that specific time for the individual.
The question of who is able to demonstrate capacity / lack of capacity will of course depend on context. However, needless to say, any Retrospective Assessment should be titled as such and dated in the present, with good reference to all resources and evidence used.
Final thoughts on the consultation
The Mental Capacity Act is a long and involved document, and the new consultation is similarly dense. While we have now published ten blogs on the consultation, we cannot cover everything. If you are interested in expanding your understanding the consultation, we strongly recommend looking at further areas relating to Lasting Power of Attorneys, Court of Protection, Deputies, Best Interest decisions, access to information, advanced decisions and how the MCA interacts with the Mental Health Act.
One area I am disappointed not to see covered with the upcoming LPS is the transferability of an authorisation. There had been rumours circulating among MCA professionals that the new rules for the deprivation of liberty would enable the same authorisation to hold for an individual if they are in transport, at a day centre or appointment, visiting a family home or in a short hospital stay (etc.).
As this issue has not been addressed in the new consultation document(s), we must assume that LPS will not be transferrable. This suggests that a new authorisation should be sought in these circumstances, or that a staff member from the residence in which they are under this authorisation should remain present in order to uphold the individual’s rights.
This will certainly be one of the questions I will raise in my response to the consultation, and in my many discussions with colleagues also working in the field.
Find out more
If you have any questions about the MCA Code of Practice consultation, or anything discussed in these blogs, please do get in touch. You can also find more details on services we offer including Mental Capacity training, assessments and consultancy.