Using the wrong test

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The most common mistakes when assessing mental capacity

Number 2 in Tim Farmer’s series

If you google the MMSE you will see that it was never intended as a test for mental capacity. Instead it tests a person’s orientation, memory, use of language, ability to follow commands and visio-spatial awareness. What it does not test is an individuals’ ability to understand information or their ability to weigh this up and use it as part of the decision making process both of which are key to determining a persons’ ability to make a decision (or mental capacity).

What is also worrying is that many practitioners do not appreciate the limits of the Mental Capacity Act and the need to use other criteria to determine capacity as outlined in case law. The MCA is very clear that there are a raft of areas that it does not cover such as capacity to get married, to vote and to have sexual relationships (although not necessarily at the same time!).

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Another common example of this is the capacity to litigate. Whilst this is covered in part by the Mental Capacity Act, it is also covered by a ruling known as Dunhill-Burgin (2014) and before that Mastermann-Lister (2003). I remember talking to a GP at a trade show and he told me how he had just done an assessment for capacity to litigate and its relationship to the 2 stage test. Once he had finished, I asked him how he had set the threshold of understanding in relation to the Dunhill-Burgin ruling as this is often an area of contention. He stared at me blankly and then with a rather concerned tone to his voice asked me what the Dunhill-Burgin ruling was and how that affected the type of questions he should have asked.

As a legal professional it is vital that whoever you instruct to assess capacity fully understands the limitations of which ever test they are using. Failure to ensure this is likely to leave you with an assessment that does not hold up under close scrutiny.