When it comes to the assessment of mental capacity, it would seem that a word counts for a lot; especially when that word is ‘appears’.
Several months ago I was made aware of a report by a 3rd party (not connected to TSF) which was criticised for the phrase “He appears to lack an ability to understand”. It was criticised because this phrase is contrary to the first principle of the mental capacity act – the presumption on capacity. To my mind the presumption of capacity is one of the fundamentals of assessing capacity and so I was surprised that the party who was identified as being at fault was a very experienced Consultant Psychiatrist.
Since then I have been keeping an eye out for this specific issue and I am surprised (and saddened) to say that it seems to be increasingly common place.
The presumption of capacity
The presumption that P has capacity is fundamental to the Mental Capacity Act. It is important to remember that the burden of proving a lack of capacity in relation to a specific decision, always lies upon the person who considers that it may be necessary to take a decision on their behalf (or will invite a court to take such a decision). ‘P’ has nothing to prove and as such the onus is to disprove capacity rather than prove it.
Approach with caution
The fact that the presumption of capacity is so key to any assessment of capacity makes this all the more concerning. Any report that includes phrases such as “They did not appear to understand”, “It was not apparent that they could not fully comprehend” or “They seemed unable to demonstrate an understanding of” does not reflect the first principle of the Mental Capacity Act and should be treated with extreme caution by all concerned.