4A: IMPORTANT CONCEPTS OF CAPACITY

Presumption of capacity

5. One of the most important concepts that underlies both the PPPR Act and the HDC Code, as well as the MCA, is the presumption of capacity.⁵³⁸ This presumption means that the burden of proving lack of capacity to make a specific decision (or decisions) always lies with the person who considers that it may be necessary to take a decision on the person’s behalf (or who will invite a court to take such a decision). The standard of proof is the balance of probabilities.⁵³⁹ Therefore, it will always be for the decision-maker to prove that it is more likely than not that a person lacks capacity.
   
   
6. A presumption of capacity does not diminish the duty of care owed to patients in the delivery of healthcare. Both the House of Lords’ report on the MCA and opinions of the Health and Disability Commissioner in New Zealand affirm that the presumption of capacity does not displace the duty to assess capacity as part of the provision of appropriate care.⁵⁴⁰

7. There is a wide variety of laws regulating legal capacity across jurisdictions, and it has been stated that there are as many different operational definitions of mental (in)capacity as there are jurisdictions.⁵⁴¹ In keeping with many other countries, New Zealand has rejected the “status” approach (based on a person’s disability or medical condition) and the “outcome” approach (based on an evaluation of the decision made), and instead uses a “functional” approach to defining capacity. A functional test focuses on the individual’s ability to make a particular decision at a particular time and the processes followed by the person in arriving at the decision.⁵⁴²
   
   
8. A functional approach is more likely to be compliant with the CRPD because it avoids directly discriminating against people merely because they have a disability. The basis of differential treatment under a functional test is the presence or absence of decision-making ability. In some instances, such as a person in a persistent coma, the fact that a person lacks ability to make decisions is clear-cut. There may also be an objective measurable difference, for example, between a patient with very advanced dementia, who has short-term memory of less than one minute, as opposed to a patient in the early stages of Alzheimer’s, who may struggle with memory but can still retain information for long enough to discuss treatment options with her doctor and family. The difference between these two individuals is not a matter of subjective opinion; it is an objective measurable difference.⁵⁴³

⁵³⁸ This presumption is referred to as the “presumption of competence” in the PPPR Act, s 5 and in the HDC Code, Right 7(2). In the MCA, the presumption is referred to as the, “assumption of capacity”. Section 1(2) states: “A person must be assumed to have capacity unless it is established that he lacks capacity.”

⁵³⁸ Mental Capacity Act 2005, s 2(4).

⁵⁴⁰ Chapter 1B and Appendix B A Review of the Health and Disability Commissioner’s Opinions about Capacity.

⁵⁴¹ Bach and Kerzner, above n 33 at 18.

⁵⁴² Letts, above n 282.

⁵⁴³ Szerletics, above n 209 at 18.

9. The principle that a person should not be assumed to lack capacity to make a decision just because other people think their decision is unwise or imprudent is meant to deflect the outcome approach to capacity, recognising that everybody has their own values, beliefs, preferences and attitudes that inform their decisions. There may be triggers, however, that call a person’s capacity into question: for example, where a person is at significant risk of harm or exploitation, or the decision is obviously irrational or out of character for that person.
   
   
10. There have been several judicial statements in the COP that have cautioned against taking an overly protective approach towards determining a person’s capacity, referred to as the “protective imperative”, and reflecting the right to make unwise decisions.⁵⁴⁴ Baker J has described this protective imperative as follows:⁵⁴⁵

    There is a risk that all professionals involved with treating and helping a person – including of course a Judge in the Court of Protection – may feel drawn towards an outcome that is more protective of the adult and thus, in certain circumstances, fail to carry out the appropriate assessment of capacity that is both detached and objective.⁵⁴⁶

11. In more borderline cases, however, the extent to which the functional approach can provide an objective basis for assessing a process of decision-making is more difficult.⁵⁴⁷ Objective standards are hard to formulate and apply. There can be a tendency to conflate the clinical concept of “insight” with the legal concept of capacity, although the term “insight” does not appear in any mental health or mental capacity legislation.⁵⁴⁸ Whether standards of capacity should be risk-related and viewed on “a sliding scale of competence” is controversial,⁵⁴⁹ as is the extent to which the rationality of a decision is relevant,⁵⁵⁰ and whether sufficient weight is given to the role of values and emotion.⁵⁵¹ All these factors influence how capacity is assessed and how the legal tests for capacity are applied in legal decisions.⁵⁵²

⁵⁴⁴ CC v KK, above n 362, at [65].

⁵⁴⁵ A NHS Trust v Dr A, above n 214, at [34]. ⁵⁴⁶ Similarly see statement by Lord Donaldson MR in T (Adult: Refusal of Treatment) [1992] 4 All ER 649, CA at 664 regarding rationality cited in Jones, above n 151 at 16.

⁵⁴⁷ N Banner “Can procedural and substantive elements of decision-making be reconciled in assessments of mental capacity?” (2013) 9 Int J Law Context 71.

⁵⁴⁸ N Allen “Is Capacity ‘In Sight’?” (2009) Mental Health L 165. Yet insight is described as the single most consistently discussed symptom of mental illness amongst Mental Health Tribunal members: K Diesfeld, “Insight on ‘insight’: the impact of extra-legislative factors on decisions to discharge detained patients” in K Diesfeld and I Freckleton (eds) Involuntary Detention and Therapeutic Jurisprudence: International Perspectives on Civil Commitment (Aldershot, Burlington Vt, 2003) at 359-382.

⁵⁴⁹ M Jonas “Competence to Consent” in RE Ashcroft, A Dawson, H Draper and others (eds) Competence to Consent in Principles of Health Care Ethics (2nd ed, John Wylie and Sons Ltd, Chichester, 2007) at 255.

⁵⁵⁰ In the long build up to the MCA, the English Law Commission in its 1991 report rejected a test based on rationality as it considered that the test would inevitably slide into an assessment of the “reasonableness” of a particular decision which could not be applied in an objective or non-discriminatory way. Law Commission Mentally Incapacitated Adults and Decision-making: An Overview, Consultation paper No 119 (HMSO, London, 1991) at 30.

⁵⁵¹ LC Charland “Mental Competence and Value: the Problem of Normativity in the Assessment of Decision-making Capacity” (2001) 8 Psychiat Psychol L 135.

⁵⁵² See Chapter 7 Code of Practice and the Toolkit for Assessing Capacity in Appendix D.

12. The functional approach reinforces the idea that capacity is decision specific and time specific. Thus, it is often wrong to say that someone “lacks capacity”; rather, it should be said that the person lacks capacity to make a particular decision at a particular time.
    
    
13. The idea that incapacity can be viewed as “global”, so that a person’s incapacity embraces every aspect of a person’s life, has been rejected in favour of a decision and task-relative approach.⁵⁵³ As explained by Buchanan and Brock, the idea behind the task-relative approach is as follows: ⁵⁵⁴

    The statement that a particular individual is (or is not) competent is incomplete. Competence is always competence for some task – competence to do something. The concern here is with competence to perform the task of making a decision. Hence competence is to be understood as decision-making capacity. But the notion of decision-making capacity is itself incomplete until the nature of the choice as well as the conditions under which it is to be made are specified. Thus, competence is decision-relative, not global.

14. A decision-specific approach to capacity is in keeping with the notion that the assessment of capacity takes into account the level of the person’s residual ability and determines capacity in proportion to the seriousness of the decision(s) they must make. As envisaged by Lord Donaldson, in Re T (Refusal of Treatment):⁵⁵⁵

    What matters is that doctors should consider whether at the time [the patient] had a capacity which was commensurate with the gravity of the decisions which he purported to take. The more serious the decisions, the greater the capacity required.

⁵⁵³ M Jonas, above n 549 at 255.

⁵⁵⁴ Buchanan and Brock, above n 35 at 18.

⁵⁵⁵ Re T (Adult: Refusal of Treatment) [1992] 3 WLR 782; [1993] Fam 95 at 113.