Mental Capacity Assessments: What Order Should Questions be Asked?

When assessing a person’s mental capacity to make a specific decision, there are 3 questions that need to be asked:

• Is there an impairment or disturbance in the functioning of the person’s mind or brain?
• Is the person unable to make the decision?
• Is the person’s inability to make the decision because of the impairment or disturbance?

But does it matter in which order the questions are asked?  The Mental Capacity Act 2005 says:

For the purpose 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 the brain.

It would stand to reason that based on this paragraph (Section 2(1) of the Act) that the questions might be asked in this order:

• Is the person unable to make the decision?
• Is there an impairment or disturbance in the functioning of the person’s mind or brain?
• Is the person’s inability to make the decision because of the impairment or disturbance?

The same questions which should produce the same answers. But if asked in a different order, might they (perhaps subconsciously) lead the person assessing capacity to a particular decision?  The order in which these questions should be asked was considered in PC and NC v City of York Council [2013] EWCA Civ 478 where it was commented:

There is, however, a danger in structuring the decision by looking to s 2(1) primarily as requiring a finding of mental impairment and nothing more and in considering s 2(1) first before then going on to look at s 3(1) as requiring a finding of inability to make a decision. The danger is that the strength of the causative nexus between mental impairment and inability to decide is watered down.

In addition, there is also need to consider whether we associate certain impairments with a lack of capacity.  Whilst none of us would like to admit saying it, I’ve heard comments (too many times to count) such as; ‘He’s got dementia, he lacks capacity to make decisions’ or, ‘She’s got a learning disability, she can’t decide where to live’.  Many a proforma (including the deprivation of liberty safeguards Forms 3 and 4 produced by the association of directors of adult social services) starts with identifying whether there is an impairment or disturbance in the functioning of the person’s mind or brain.  This is also the order presented in the Mental Capacity Act Code of Practice which sets the questions out as a 2-stage test:

• Stage 1: Does the person have an impairment of, or a disturbance in the functioning of, the mind or brain?
• Stage 2: Does the impairment or disturbance mean that the person is unable to make a specific decision when they need to?

However, if they started with identifying whether the person could make the decision (can they understand, retain, weigh-up and communicate the relevant information) and finished with decisions about whether there is an impairment or disturbance in the functioning of the person’s mind or brain, it might reduce the risk of applying any such discriminatory approaches.