The capacity test; a lament for the ‘old order’

Abstract

ABSTRACT Recent years have seen calls for the order of the statutory test of decision-making capacity to be reversed and extended from its existing sequencing in the Mental Capacity Act Code of Practice. The current ‘two-stage test’, involves a ‘diagnostic test’ (requiring the establishment of impaired or disturbed functioning of the mind or brain) and a ‘functional assessment’ (examining whether that impairment or disturbance renders the person unable to make a specific decision). Despite initial judicial concern that the order in the Code is incompatible with section 2 of the Mental Capacity Act, there has been surprisingly limited academic discussion. The recent remarks of Supreme Court Justice Lord Stephens in A Local Authority v JB confirming a reverse order have, seemingly, settled the matter, and the forthcoming revised Code of Practice will likely confirm this change. This article examines the rationale underlying this change, highlighting that suggested legal and policy reasons are not as ‘sound’ as might be thought. The paper argues that changed sequencing is unlikely to resolve potential neglect of the test’s causative nexus and, furthermore, there are potentially illogical and negative practice consequences, concluding that the proposed reversal of the test is cause for considerable lament.