MEDICO LEGAL M A G A Z I N E
AN INFINITE CAPACITY FOR COURTING DISASTER – THE MENTAL CAPACITY ACT By Jonathan Dingle, FRSA, MCIArb, Barrister Middle Temple
Your correspondent was in Kingston-upon-Thames, just opposite the police station, in the offices of a well known national firm of solicitors. His eye had turned slightly longingly to the menu boards of the pub opposite, advertising farm-smoked ham nestled in a joyous tuber, but his mind was focussed on the client. This veritable bastion of the Surrey Hills was rambling: something about fairies, and the spirit of her dear departed dog. Suddenly, her hitherto timid husband perked up. “Sorry” he interjected, “She has these ideas and loses the plot quite a lot. I never know if she is really with us.”
Readers of this organ, however, will know the two-stage test is at the heart of good practice. The professional must ask: (1) Does the person have an impairment of the mind or brain, or is there some sort of disturbance affecting the way their mind or brain works? (It doesn’t matter whether the impairment or disturbance is temporary or permanent.) (2) If so, does that impairment or disturbance mean that the person is unable to make the decision in question at the time it needs to be made? A lack of capacity will likely be established if the person cannot achieve any of these requirements:
Praise be! For early lashings of Wiltshire’s finest with mashed potato were almost guaranteed. How so? Why was the conference about to end?
(a) Understand information about the decision to be made
It is, perhaps, surprising that lawyers on both sides of the bar, expert witnesses, and even some mental capacity assessors are not fully aware of the correct test or tests for mental capacity. Some think Dunhill is a product of Alfred’s Duke Street emporium and Mastermann-Lister the inventor of the Double-Cross system of counter espionage (which as also about smoke and mirrors). They may recognise the 2005 Act but not its capacity for confusion and disaster.
(c) Use or weigh-up the information as part of the decision process
14
Sp o n s o re d by:
(b) Retain that information in their mind
(d) Communicate their decision If a person lacks capacity in any of these areas, then this may represent a lack of capacity. Useful guidance is set out in the Mental Capacity Act 2005: Code of Practice 1 which can be found in the footnote.
