Capacity

Question 1

What is the Court of Protection?

Answer 1

A specialised court set up to deal solely with matters arising from the Mental Capacity Act 2005

▪️ Capacity
▪️ Best interest
▪️ Points of law

Question 2

What age does the MCA apply to?

Answer 2

Anyone 16+

Question 3

Decisions made by the MCA are….

Answer 3

▪️ Decision-specific
▪️ Time-specific

Question 4

What is the two-stage test of MCA 2005?

Answer 4

1. Impairment of brain or mind (Section 2)
   LEADING TO
2. Inability in decisional function (Section 3)

Question 5

What types of decisions are NOT involved in the MCA?

Answer 5

▪️ Writing a will
▪️ Marriage
▪️ Sex

Question 6

How do you determine whether someone has the ability to make decisions and so has capacity?

Answer 6

Needs to be able to do ALL of the following:
1. Understand information
2. Retain information
3. Use or weight information to generate a choice
4. Communicate that choice

Fail on one = lacks capacity

Question 7

What is section 1 of the MCA 2005?

Answer 7

General considerations

Question 8

What are the general considerations of the MCA 2005 (Section 1)?

Answer 8

2. Presumption of capacity
3. Support: practicable steps (promote passing)
4. Unwise decisions do not equal lack of capacity
5. Best interests
6. Least restrictive

(Principle 1 = applying these principles)

Question 9

What is Gillick competence?

Answer 9

▪️ A child can be assumed to have capacity if they have sufficient emotional maturity and intelligence
▪️ Typically for people age 13-16
▪️ No MCA assessment

Question 10

If someone under 16 does not have Gillick competence, who has decision-making role?

Answer 10

▪️ Persons with “parental responsibility”
▪️ The courts

Question 11

What are the two types of Lasting Power of Attorney that can be appointed in advance of becoming incapacitous?

Answer 11

▪️ Health and welfare
▪️ Finance and property

Question 12

What is the CRPD?

Answer 12

UN Convention on the Rights of Persons with Disabilities (2006)

Created to promote and preserve human rights - does the MCA violate this?

Question 13

What are the main challenges to capacity assessment?

Answer 13

▪️ Little standardisation
▪️ Interface with other professionals
▪️ Gathering information?
▪️ Complicated presentations and decisions
▪️ Diagnosis as imperative?
▪️ Navigating the functional test

Question 14

What are the issues associated with assessing mental capacity in research?

Answer 14

▪️ “Cut-off scores” - decision needs to be binary in research but most psychometric tests are not like this
▪️ Consent and ethical issues - need to study people who lack capacity

Question 15

When and how is capacity assessed in the courts?

Answer 15

▪️ When capacity is contested
▪️ Discussed in the Court of Protection
▪️ Professional evidence from a range of professionals
▪️ Medical evidence carries greatest weight
▪️ Determined by independent “expert” witnesses