Assuming a lack of capacity or ‘blanket capacity’

 In Elderly/Vulnerable Client

Disclaimer: LawSkills provides training for the legal industry and does not provide legal advice to members of the public. For help or guidance please seek the services of a qualified practitioner.

The most common mistakes when assessing mental capacity

Number 3 in Tim Farmer’s series Assuming a lack of capacity

Despite the Mental Capacity Act making it clear that we are to start from the point of an presumption of capacity (see the first principle) a survey conducted by Community Care magazine in 2011 showed that over 54% percent of practitioners started an assessment from the view point that the person lacked capacity.

In practice, this is something that we see time and time again: “Oh, Mr X has dementia he won’t be able to make that decision” or “P has a learning disability, they can’t understand this”. The Act is very clear that we start from the point of view that the person does have capacity and the onus is on the person making the allegation to disprove rather than to prove capacity.

Furthermore, we often see the notion of ‘blanket capacity’ going hand-in-hand with the assumption of a lack of capacity. What I mean by ‘blanket capacity’ is that a person either has mental capacity or they don’t; full stop. There is no allowance for the fact that a person may have capacity to make a decision about one thing but not the other.

The LawSkills Monthly Digest

Subscribe to our comprehensive Monthly Digest for insightful feedback on Wills, Probate, Trusts, Tax and Elderly & Vulnerable client matters

Not complicated to read  |  Requires no internet searching |  Simply an informative pdf emailed to your inbox including practice points & tips

Subscribe now for monthly insightful feedback on key issues.

All for only £98 + VAT per year.

Lawskills Digest

I remember on many occasions when I was working within Liaison Psychiatry we would receive a phone call from the ward asking us to assess a patient’s capacity. When we asked in relation to which particular decision we would often be greeted with the reply “Oh, just their capacity in general”. When we pushed for a specific decision to be identified e.g. capacity to take medication, capacity to decide where to be discharged to etc. we were often met with a gruff “Don’t be difficult, just get up here to assess them!”

Again, this is an area where we regularly make successful challenges against other professionals’ reports. I think the worst case I ever saw was of a lady who had been deemed to lack capacity to manage property and financial affairs which, without any further assessment, became a lack of capacity to decide where to live, lack of capacity to make decisions about medical treatment and then finally lack of capacity to litigate.

Remember, there is no such thing as ‘blanket capacity’. Capacity is both time and item specific and the onus is on the person suggesting the patient lacks capacity to prove it.

FREE monthly newsletter

Wills | Probate | Trusts | Tax  | Elderly & Vulnerable Client

  • Relevant learning and development opportunities
  • News, articles and LawSkills’ services
  • Communications which help you find appropriate training in your area
Recommended Posts
Using the wrong test in mental capacity assessmentsBook review