Test for Mental Capacity – Setting the Threshold of Understanding
One of the most common mistakes assessors make when assessing mental capacity is setting the threshold of understanding either too high, too low or sometimes not at all! Setting the threshold of understanding is vital for many reasons. Only once you have determined the threshold of understanding can you then identify the questions you need to ask to ascertain whether they meet the threshold and then determine how that person needs to demonstrate that understanding to you.
Occasionally, we are lucky and the courts have already set the threshold for us (see rulings such as Banks v Goodfellow (1870) for Wills and IM v LM & Others (2014) for the threshold in relation to sexual relationships). Unfortunately, when using the MCA (2005), whilst we have a solid framework for assessing mental capacity in the 2 stage test, the actual setting of the threshold is left up to the individual practitioner.
The CMSL Principle
In order to assist with the setting of the threshold of understanding I have created the CMSL principle. Over the many years that I have been assessing mental capacity, I have become aware that when it comes to setting the threshold of understanding everything that a person needs to understand in relation to a particular decision can be divided up into four main areas. These are Concept, Mechanics, Short term and Long term (hence the CMSL Principle).
So for example, the ability to manage property and financial affairs may contain some of the following;
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Concept: What is money? Where does it come from? The fact that it is finite in nature
Mechanics: How do you practically get your money? How do you invest? What are the practicalities of managing money?
Short term: This might cover day to day budgeting. What does the person need to know or demonstrate in relation to this, for example what is your income? Do you have any regular outgoings?
Long term: This would cover the longer term investment of larger sums of money, for example how would you make your compensation payment last for 30 years? How would you identify whether something is a good investment or not? Do you have any long term medical needs you might need to pay for?
Setting the bar
Once you have identified the various elements that you would expect a person to understand, it is then time to decide the extent to which an individual should understand them. It is important that we don’t set our expectations about the required level of understanding too high. Various judgements from the Court of Protection (for example, PH and a Local Authority v Z Limited & R  EWHC 1704 (Fam)) have made it very clear that setting the bar too high makes the MCA unworkable because it creates unrealistic criteria that even a person with capacity would struggle to meet; however, setting it too low means that people will be deemed to have capacity who otherwise shouldn’t.
‘So how high do we set the bar?’ I hear you cry. From my experience and from discussions with various legal bodies, when the threshold has not been previously established in law, I believe it is necessary to use the ‘average man on the street’ test (sometimes called ‘the man on the Clapham omnibus’ test). This simply asks you to consider what level of detail you would expect the average person in the street to know about the particular decision you are being asked to address. Using this ‘test’, it becomes clear that it is not necessary for the individual to have a solid grasp of all the minute details, merely the salient facts. There is the obvious caveat, of course, that if a person has sought specialist legal advice relating to something that the average man on the street would not be expected to know, for example a PI Trust, then this must be factored in as well.
The threshold is vital
As mentioned at the start of this article, setting the threshold of understanding is an essential part of the assessment yet one which is so often overlooked by practitioners. It should form the bedrock of every mental capacity assessment. Done properly, it enables the assessor to determine what questions they need to ask to identify if someone has the correct level of understanding as well as what information ‘P’ needs to provide and how this can be provided. Failure to set the correct threshold will result in a poor assessment and the wrong outcome being identified.
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