An important element of the definition above is that the focus is on
process rather than outcome. The determination of capacity does not turn
on the nature of a person’s actual decisions. A person is not incapable
simply because their decisions may appear questionable. The inquiry
focuses on a person’s ability to understand relevant information and
appreciate consequences. As long as a person can meet this test they are
capable of making decisions. The fact that a lawyer may not agree with
those decisions is not relevant to a determination of capacity.
Determining capacity does not involve testing a person’s prior knowledge.
The goal is to confirm a person’s ability to understand and process
information. For instance, a lawyer must be satisfied that a client has a
basic understanding of the mutual roles of client and solicitor. However,
most members of the public do not have a detailed appreciation of what
lawyers do, what a retainer means or what the obligation to instruct
counsel entails. So the fact that a client may not already understand these
issues does not render them incapable. It is a lawyer’s duty to explain
these issues to the client. Capacity can be tested only once all necessary
information has been provided to the client in a clear and easy to
understand manner. Only if a client appears unable to understand the
information provided to them will a concern about their capacity to instruct
counsel arise.
The issue of capacity is further complicated by the fact that an individual’s
capacity can fluctuate over time. Many mental health issues are episodic,
meaning that while there may be periods where a person is incapable of
performing a particular function, between such episodes that person will be
perfectly able to make all decisions. The capacity of people with certain
injuries, such as an acquired brain injury, may improve over time. For these