The concept of mental capacity

Assessment of capacity

In order to assess an individual’s capacity a three-part test is required. Professionals must ask themselves:

  1. Is the person unable to make the decision in question? If so:
  2. Is there an impairment or disturbance in the functioning of the person’s mind or brain? If so:
  3. Is the person’s inability to make the decision because of the identified impairment or disturbance?

Section 3(1) states that a person is unable to make a decision for themselves if they are unable:

  • to understand the information relevant to the decision; or
  • to retain that information; or
  • to use or weigh that information as part of the process of making the decision; or to communicate his decision (whether by talking, using sign language or any other means).