When we refer to the ‘threshold of capacity’, we refer to the point at which a professional assessor can claim with confidence that an individual has or has not demonstrated capacity to make a specific decision at a specific point in time. This is determined by what is known as the balance of probabilities.
Balance of probabilities
The balance of probabilities is a statutory term that asks: ‘what would the average ten people know, understand, and retain on the given decision when supported and informed?’. Based on a small representative sample of the population, is it more likely that the individual has capacity regarding the decision in question or not?
Given that the balance of probabilities is based on an average sample of the general population, the threshold of capacity is often much lower than many people would expect.
Drawing out key concepts
To help us assess whether the threshold for capacity has been met, it is essential to establish questions that help us draw out the key concepts relating to the decision being addressed. For example, if the question is relating to a client’s placement, then key concepts would include what their placement needs are (including food, hygiene, care and medication); what is provided within their current placement; what options might be available; and a basic understanding of funding.
Of course, this list is not exhaustive, and should be tailored to the individual and their context. Questions should also be graded to the individual, with suitable adaptions in place to support capacity wherever possible.
Only once these concepts have been addressed can we then clarify the individual’s choice based on their understanding of the question and their ability to weigh up a choice. However, we should remember that they are perfectly within their legal rights to make what others might deem an ‘unwise’ decision, so long as they are able to demonstrate an ability to rationalise their decision-making process and recognise the relevant risks and benefits.
What we are aiming to establish here is whether the individual can understand, retain, weigh up and communicate their decision. If any of these criteria are not met, then the outcome of the functional section of the two-stage test is deemed to lack capacity. We must then proceed to the diagnostic stage, which includes the causative nexus, which establishes if these two stages are directly linked. From this combined two-stage test, a final outcome is established.