The Functional Test of Capacity
Following a serious injury, a formal assessment is required to determine if an individual has the capacity to make a specific decision. This 'Functional Test' is a two-stage process applied in real-world practice.
Stage 1: Impairment
The assessor must first identify if there is an impairment of, or a disturbance in the functioning of, the mind or brain—such as a traumatic brain injury or cognitive deficit.
Stage 2: Decision-making
Can the individual understand, retain, use, and weigh information relevant to the decision? Successful outcomes often depend on a robust Cognitive Rehabilitation plan to support these functions.
Core Principles of the Mental Capacity Act
The Mental Capacity Act 2005 (MCA) is built upon five statutory principles. These are not merely guidelines; they are legal requirements that must be followed when working with individuals who may lack capacity after a serious injury.
01
Presumption of Capacity
Every adult has the right to make their own decisions and must be assumed to have capacity unless it is proved otherwise. We do not assume incapacity based on the severity of a brain injury alone.
02
Supported Decision-Making
A person is not to be treated as unable to make a decision unless all practicable steps to help them to do so have been taken without success. This may involve specialist communication aids or timing.
03
Unwise Decisions
A person is not to be treated as unable to make a decision merely because they make an unwise decision. Medico-legal assessments must distinguish between poor judgment and lack of capacity.
04
Best Interests
An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in their best interests, considering their past wishes and values.
05
Less Restrictive Option
Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive.
Specific Decision Contexts
Litigation
- Assessing the ability to provide instructions to legal teams.
- Understanding the risks and benefits of a settlement offer.
- Determining if a Litigation Friend is required under Court of Protection rules.
Finances
Managing complex compensation awards requires specific capacity. Where capacity is lacking, we facilitate Deputyship & Power of Attorney (hmjd6) to protect future security.
Care
Decisions regarding care packages and residence involve complex Legal Protections & FAQs (j991n), ensuring everyday safety and personal dignity.
Rehabilitation
- Engaging with multi-disciplinary therapy teams.
- Consenting to neuro-rehabilitation goals.
- Assessing progress through cognitive frameworks.
