Mental capacity—assessments and tests
Mental capacity—assessments and tests

The following Private Client guidance note provides comprehensive and up to date legal information covering:

  • Mental capacity—assessments and tests
  • When to assess
  • Who assesses
  • Medical evidence
  • Assessment tools
  • Retrospective assessment

Solicitors are not expected to be able to make a clinical diagnosis of a person's mental state but there are a number of tests and assessments that they need to understand. Knowing a little of the clinical tests can assist in everyday situations.

In considering assessments and tests in respect of those who may not have capacity there are two essential sources of information:

  1. the Mental Capacity Act 2005 (MCA 2005)

  2. the Mental Capacity Act 2005 Code of Practice (the Code)

When to assess

A person's capacity should be assessed when it is in doubt. The Code assists in indicating non-exhaustive instances where concern as to capacity may be expressed, such as where:

  1. the person’s behaviour or circumstances cause doubt as to whether they have capacity to make a decision

  2. somebody else says they are concerned about the person’s capacity

  3. the person has previously been diagnosed with an impairment or disturbance that affects the way their mind or brain works and it has already been shown they lack capacity to make other decisions in their life

If an allegation of lack of mental capacity is made, the person making the allegation must be able to provide proof. They need to be able to show that, on the balance of probabilities, the individual lacks capacity to make a particular decision at the time