MC4 Applying the test for assessment of mental capacity

Before the implementation of mental capacity legislation, there was no specific clinical or legal procedure for assessing mental capacity.

Assessments, where they did take place, were based upon medical outcomes and diagnosis. Over the years, this method was increasingly replaced by what is known as a functional approach. However, for most health and social care workers and informal carers such as relatives and friends, formal guidelines did not exist. Meanwhile, the legal test that was usually applied was that contained within the case known as Re C, relating to a man with a diagnosis of schizophrenia who was deemed capable of making the decision to refuse the amputation of his gangrenous foot. The case is explained below.

The case: Re C (Adult: Refusal of Medical Treatment) [1994] 1 All E.R. 819

The judge in this case said that the test of capacity had three stages:

1. Does the patient comprehend and retain information?
2. Does the patient believe the information?
3. Does the patient weigh that information up, balancing risks and needs to arrive at a choice?

Even following the implementation of mental capacity legislation, it remains the case that there is no set procedure for the assessment of capacity. There are no specific forms that must be filled in, nor is there a certificate of incapacity (although in some cases in Scotland, general practitioners must complete a certificate). You will consider why this is shortly.

Nonetheless, a framework has been developed and this is known as the test of mental capacity.