Authors’ reply to Waite

• Published in: BMJ (Online) Vol. 348; no. mar05 4; p. g1915
• Main Authors: Heslop, Pauline, Noble, Antonia, Hoghton, Matthew, Jepson, Marcus, Marriott, Anna
• Format: Journal Article
• Language: English
• Published: England British Medical Journal Publishing Group 06.03.2014; BMJ Publishing Group LTD
• Subjects: CAPACITY ASSESSMENT; Decision making; Humans; Mental Competency
• ISSN: 0959-8138; 1756-1833; 1756-1833
• DOI: 10.1136/bmj.g1915

Waite correctly states that the test under the Mental Capacity Act 2005 is found in section 2(1) and that it is a single test. 1 2 2 People who lack capacity: (1) For the purposes of this act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain (2) It does not matter whether the impairment or disturbance is permanent or temporary (3) A lack of capacity cannot be established merely by reference to: (a) a person's age or appearance, or (b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity.[...]the test needs to be interpreted alongside the provisions of section 3 when determining the causative element of the decision making process-why the individual cannot make the decision. 3 Inability to make decisions: (1) For the purposes of section 2, a person is unable to make a decision for himself if he is unable to: (a) understand the information relevant to the decision (b) retain that information (c) use or weigh that information as part of the process of making the decision, or (d) communicate his decision (whether by talking, using sign language or any other means) (2) A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation if it is given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means) (3) The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision (4) The information relevant to a decision includes information about the reasonably foreseeable consequences of: (a) deciding one way or another, or (b) failing to make the decision.