There are several terms that are used to describe the process of determining a person’s mental capacity. Is it a Mental Capacity Test, or a Mental Capacity Assessment? In this blog, we explore some of the language around the Mental Capacity Act (2005) and how it applies in practice.
What the Act says
According to the Mental Capacity Act Code of Practice:
‘Anyone assessing someone’s capacity to make a decision for themselves should use the two-stage test of capacity’Code of Practice 2007, p. 41
While the process here is referred to as a ‘test’, it is perhaps better referred to as an ‘assessment’ as this better reflects the dynamic and interactive approach the process takes. Indeed, the two terms are used interchangeably in official guidance, and this is perhaps what has led to some confusion online.
For our purposes though, we always refer to a Mental Capacity Assessment, as the word ‘test’ implies a closed-format process that is standardised and inflexible – which is far removed from what the process should be.
In a ‘gold standard’ Mental Capacity Assessment, there are no standardised questions, as each assessment is bespoke to the individual and the specific time-based decision being addressed. As such the assessor should use their clinical and professional judgement to carefully weigh up where they determine the threshold for capacity should be, and how to measure it in terms of the individual’s particular context.
The two-stage test
When the code of practice refers to the ‘two-stage test’ it refers to the two core elements of the directed method for assessing mental capacity for a specific decision, which have been inverted in-line with updates in case law:
- Functional: Can they understand, retain, weigh up and communicate the relevant information to make the decision with all reasonable adjustments and support if required?
- Diagnostic: Does the individual have a short or long-term impairment or disturbance of the mind that impacts their cognition?
In recent years there seems to have been a general move away from referring to it as a ‘two-stage test for mental capacity’ – perhaps to make it easier to communicate and explain.
However, from a professional standpoint we should be careful to avoid over-simplifying the process as we risk overlooking the ‘causative nexus’ between the diagnostic and functional tests (See: PC & NC v City of York .)
Only where you can reasonably say that the person cannot make the decision because of the impairment of their mind can you say that they lack capacity to make the decision.The Mental Capacity Toolkit (2022)
In my professional experience, I have encountered several cases now where the assessment process has skipped one or other of the two stages. This is clearly very poor practice and goes against established case law and guidance.
Even if a condition is known and well established it is ethically and legally wrong to presume incapacity due to a person’s physical or mental health, their appearance, sex, age, heritage or cultural background. Therefore, each assessment must be completed in full on a per-decision basis if there is a reasonable belief that an individual may lack capacity. This should be fully documented, establishing appropriate best interest decisions and a care plan to support if necessary.