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A Capacity Test is a specific test undertaken by health and social care professionals to determine whether a person can make a particular decision or whether they need support to make that decision. It can be any decision and the Capacity Test is specific to each decision. It is entirely possible for a person to be able to make decisions in relation to where they are going to live, but not to manage their property and financial affairs.
A Capacity Test follows a specific format and certain criteria have to be met to conclude that a person lacks the mental capacity to make that decision. Is it vitally important that the Capacity Test is undertaken by someone with sufficient training, otherwise mistakes can be made. The result could be that someone is assessed as lacking mental capacity when that is not the case, or having mental capacity when in fact they don’t. This can lead to people’s rights to determine their own path being restricted or others not sufficiently protected.
Capacity tests should not be undertaken without good reason. The law refers to it as reasonable belief; one should have a reasonable belief that the person lacks capacity to make a particular decision before undertaking a Capacity Test. There should be no blanket capacity tests just because a person is of a certain age, lives with dementia, a learning disability or poor mental health. If you are proposing a Capacity Test, you need to be clear why you are proposing it and what the decision is. Additionally, capacity tests can only be undertaken where the person is aged 16 or over. A different test is used for children under the age of 16.
Capacity tests are not about passing or failing. Primarily they are used to determine what support a person requires to be able to make the decision for themselves; that it always the best outcome of a Capacity Test. People should be empowered to make their own decisions wherever possible. However, there are some occasions where a person cannot make the decision for themselves and need support to make the decision or someone else to make the decision for them, this is called a Best Interest decision.
This depends entirely on the decision in question and whether another person has authority to make decisions on behalf of that person. Typically, this will be someone who has been appointed as a deputy by the courts or who has been appointed as an attorney (Lasting Power of Attorney) by the person. A special court called the Court of Protection also exists to make decisions for people who are assessed as not having mental capacity following a Capacity Test.
If a deputy or attorney does not exist or cannot make a decision, health and social care professionals usually make the decision, or ultimately a judge in the Court of Protection for complex decisions or where an agreement cannot be reached. Whoever is making a Best Interests decision, they are trying to determine how the person would have made that particular decision for themselves and following that as close as possible. It should never be used to impose a course of action upon someone arbitrarily.
Absolutely! Having an attorney is an excellent idea. It’s a way of planning ahead, appointing someone else to make decisions on your behalf when you are unable to. Someone you trust will make the decisions you want them to. Attorneys are appointed whilst you still have the mental capacity to appoint them. However, they cannot usually act as an attorney until you no longer have the mental capacity to make decisions for yourself and to determine this, a Capacity Test is required. There is one exception to this, a financial affairs attorney can act as an attorney whilst you still have mental capacity but only with your permission.
If you would like to find out more about capacity tests, please take a look around our website or drop us an email at hello@simplysocialwork.co.uk.
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