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In the second part of this podcast on assessing mental capacity, we will explore the second stage of the test and what you need to show to be protected for your capacity assessment. If you have not yet listened to part one, it is recommended that you listen to it before this part.
What does the Act mean by “inability to make a decision”?
This is the second stage of the two stage test. Under the Act, a person is unable to make a particular decision at the relevant time if she cannot do any one of these four things:
understand information relevant to the decision
retain that information in her mind long enough to make the decision
use or weigh that information as part of the process at arriving at a decision
communicate her decision by talking, using sign language or any other means
In order to satisfy the second stage of the test, it is enough if she is unable to do any one of these four things. The impairment or disturbance you have identified in stage one must also be the cause of the inability to make the decision. If there is more than one possible cause, then the impairment or disturbance must be the effective or material cause.
What must a person be able to understand?
It is not necessary for a person to be able to understand, or comprehend, every detail about the decision in question. Instead, the question is whether she can comprehend the salient details relevant to that decision. In terms of your assessment, this has the effect of not setting the bar too high. It is also why it is very important for you to be clear about the particular decision you want the person to make so that you can share information that is relevant to the decision. This will avoid overwhelming the person with irrelevant information.
Do not to assess a person’s understanding before you have shared relevant information about the decision with her. Make every effort to give information in a way that is most appropriate to help her understand.
When assessing a person’s ability to understand relevant information:
Give information in a way that she will best understand, taking into account the her circumstances, needs, and any cultural or religious factors that might influence the way information is presented or understood.
Ask yourself whether she has a general understanding of the nature of decision she is being asked to make, why she needs to make it and the likely consequences of making, or not making, the decision?
If she is unable to understand information relevant to the decision, can you show how you came to this conclusion?
Why must a person be able to retain information?
We all have to retain information in order to use it to make a decision. Remember, a person need only retain information long enough to make the decision in question. For some decisions, this may be a short period of time. For others, it may need to be retained for longer.
When assessing a person’s ability to retain relevant information use whatever strategies you think will help her retain relevant information (for example, notebooks, photographs or posters) and check her retention during your assessment.
Check her retention periodically. If she is able to retain relevant information only for a short period of time, it does not prevent her from being regarded as able to make the decision. It is okay to ask the same question more than once, to test her retention.
Why must a person be able to use or weigh information?
This is about the person’s capacity to engage in the decision-making process, to be able to see the various parts of the argument and to relate these one to another.
For example, someone may understand relevant information, but an impairment or a disturbance may stop her from using it. Or, an impairment or disturbance could also lead someone towards a specific decision without really understanding or using the information she has been given.
When assessing a person’s ability to use or weigh relevant information, ask yourself two questions:
First, how does the person use or weigh relevant information as part of the process of arriving at a decision? Remember, she only needs to be able to show you that she can weigh the salient details.
Second, if there are alternative options, how does she weigh the likely consequences of each choice, including the consequences of making no decision at all?
