Chapter 4: Defining Capacity

Chapter 4 is in three sections:

  1. An overview of important concepts of capacity.

  2. An analysis of the four legal tests of capacity in the Protection of Personal and Property Rights Act 1988 (PPPR Act).

  3. The test for capacity under ss 2 and 3 of the Mental Capacity Act (England and Wales) 2005 (MCA).

Capacity and best interests
  1. “Capacity” and “best interests” are two fundamental concepts that underlie the English legislation. As capacity (or incapacity) is the “brightline” for determining whether the law permits intervention in people’s lives, it is essential that there is a clear test.535 If a person is unable to make a decision as defined in law, the best interests standard provides a legal and an ethical imperative for the person’s will and preferences to remain central to the decision- making that affects them.536 These clearly defined concepts in the MCA give integrity to the legal framework and make the law more accessible to everyone that uses it.

  2. The principles and philosophy of the PPPR Act and MCA are very similar, as is the functional approach to defining capacity, based on an assessment of a person’s decision-making ability, not the decision made. Any definition of capacity must be considered in light of the key concepts that are used to interpret how the definition is applied.537

  3. In this chapter, the problems and complexity of the multiple tests for capacity found in the PPPR Act and the lack of a definition of competence within the HDC Code are identified. The functional test in s 3 of the MCA is considered in light of current English case law.

  4. The essence of the recommendations in Chapters 4 and 5 is that revised legislation should provide a single and unified legal test for capacity, as well as a transparent standard for decision-making, referred to as the “best interests” standard.

535 An introduction to the legal concept of capacity is set out in Chapter 1A.

536 Chapter 2 of this report has argued that the best interests standard as understood in s 4 of the MCA is an essential complement to a supported decision-making framework.

537 The common legal principles of the PPPR Act, the HDC Code and the MCA are considered in Chapter 2B.

  © 2020 Alison Douglass