The Mental Capacity Act defines capacity as,
‘the ability to make a decision’.
Whilst competence is defined as
‘ the ability to do something successfully or efficiently’.
Competence is a far more expansive creature.
It is the ability to execute a decision, after it has been made .
If we run the two together, at most, the definition of capacity, would be,
‘ the ability to make a decision, successfully’.
Not to be indecisive, like Hamlet
But indecisiveness is excluded from incapacity under the Act.
The Act, was not titled, The Mental ‘Competency’ Act.
Despite this the MCA capacity test requires a person to understand the reasonably foreseeable consequences if he were to actually execute his decision once made.
This requires far more, than the an ‘ability to make a decision’ as ‘capacity’ is defined by the Act. As it requires the competence to perform the decision.
This is a person’s competency not his capacity .
Such a distinction may not affect the assessments of delirious patients, or, the alzheimer confused, to consent to medical treatment. .
But, even here, the capacity test allows draconian and dangerous removal of any patient’s autonomy.
And prevents any questioning, of medical diagnoses, and/or treatment.
Were Ashya King, an incapable adult, he, nor, his parents, could, have availed themselves of laser treatment, and, he, might now, be severely disabled.
The MCA Code of Practice worrying provides a denial of medical or mental diagnosis to be possible evidence of incapacity to consent to treatment.
The MCA Code gives little guidance on assessing capacity when considering proactive decisions.
Stephen Hawking ’s capacity to decide to go into space, or out into the community, without his wheelchair..
Or, an autistic adult’s decision to go out into the community alone.
Are decisions both have the capacity to make but not the competency to perform.
If, they were to insist, they did have such capacity, this would be evidence, this would be evidence, they failed to appreciate, the consequences of their decisions, and, were therefore under the functional assessment,incapable.
Although Professor Hawing’s incapacity, could, not be caused by an’ impairment of the mind’, as unlike an autistic, he has a voice box.
As the Act, likes to have its cake, and eat it, it states, reckless decisions, per se, are not evidence of incapacity.
The MCA capacity test is not about capacity, but competence, safeguarding, and control.
And discriminates against the disabled by using, a disabled’s person’s inability to execute a decision, against him by conflating, incapacity with incompetence.
Parliament appears to have modelled, this capacity test, on the test used, to assess a child’s competency to give evidence.
As section 53(1) of the Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999) povides:
A person, is not competent to give evidence in criminal proceedings, if it appears to the court, that he is not a person, who is able to understand questions put to him as a witness and give answers to them which can be understood [section 53(3)].
Having lectured, this for twenty years, I can attest, it is a minefield of semantics.
Case law, arguing, it is satisfied, if a child can distinguish, between ‘fact and fantasy’ ie they know teletubies are not real.
And, a child must appreciate, the importance of telling the truth, and the consequences in court. as opposed to a social occasion.
Truth is truth?
Suffice it to say, the competence of a child, is a vague, subjective exercise, for a judge to assess, on questioning each particular child.
So one can but wonder, why, Parliament, chose, a similar blunt, subjective tool, to potentially remove, anyone’s autonomy for life in most cases.
Could it serve the real purpose of the MCA ?