`A person should be regarded as without capacity if at the material time he is:. unable by reason of a mental disability to make a decision on the matter in
question; or
. unable to communicate a decision on that matter because he or she is
unconscious or for any other reason.'
The expectation of the Green Paper is that a functional approach will be used in
assessing capacity ± in other words considering capacity at the time the decision
needs to be made, in line with existing case law. The approach of the courts to the
nature of the information to be understood for capacity to exist is also favoured:
`The Law Commission recommended that a person should not be regarded as
unable to understand the information relevant to a decision if he or she is able to
undertand an explanation of that information in broad terms and simple lan-
guage including other languages if appropriate or other forms of communica-
tion such as audio tapes. They also recommended that a person should not be
regarded as incapable of communicating their decisions unless ``all practicable
steps to enable him or her to do so have been taken without success''.' [39]Where an individual is deemed incapable, the best interests test for treatment will
be retained, but with modifications [40]:
`In determining a patient's best interests regard should be given to ±. the ascertainable past and present wishes and feelings of the person con-
cerned and the factors the person would consider if able to do so;
. the need to permit and encourage the person to participate as fully as possible
in anything done for, and any decision affecting, him or her;
. the views of other people whom it is appropriate and practical to consult
about the person's wishes and feelings and what would be in his or her best
interests; and
. whether the purpose for which any action or decision is required can be as
effectively achieved in a manner less restrictive of the person's freedom of
action.'
This approach to assessing best interests is not without its own drawbacks, as has
been covered in Chapter 7; however it does merit consideration simply for the fact
that if enshrined in statute, the medical profession will be able to adopt a
consistent approach to all patients without the loss of the subjectivity of each
individual case.
That the proposals will be incorporated into legislation is now clear with the
publication ofMaking Decisions[41]. The Government has accepted that a new
statutory definition of incapacity is needed and agrees the presumption against
incapacity will stand. The proposals of the Law Commission in relation to best interests' and determiningbest interests' were also accepted. The proposals by the
Government do however include additions to this latter test, and hence in
establishing what is in a patient's best interests the following will have to be
considered [42]:
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