New test for mental capacity

On 1 October 2007, the Mental Capacity Act 2005 (“MCA”) came into force. It contains several important reforms, one of which is a significant change in the way mental capacity is assessed.

The MCA’s new statutory test for capacity is based on an individual being presumed to have capacity unless proven otherwise. It is decision-specific, looking at whether a person has the capacity to make a particular decision at a particular time. It therefore allows for fluctuating capacity, where a person may have capacity to make a decision at one time but not at others. A simple example is someone who is too drunk to make a rational decision but is able to do so the next morning.

The test for establishing a lack of capacity in respect of a particular decision is as follows:

1. Can the individual make the particular decision for themselves at the relevant time?



2. If not, are they unable to make the decision because of an impairment of, or a disturbance in, the functioning of the mind or brain?

The MCA also makes it clear that an individual’s decision can be communicated in words, writing or other means (for example, gestures or signs).

This change is welcome as it moves away from previous ideas of assessing capacity based on diagnosis or age, instead looking at the individual person and the particular decision.

For more information about the effective management of litigation please contact:

Henry Frydenson
Tel +44 (0)20 7440 7206
henry.frydenson@mishcon.com