One of the most difficult considerations for a mediator throughout the course of an elder mediation is to continually assess the elder person’s ability to make decisions. This is complicated by the fact that their ability to make decisions will fluctuate. There are then the further obligations to consider which are placed on people by the MCA and the MCA Code of Conduct as set out below.

Before considering the tests to be applied under Section 2 of the Mental Capacity Act 2005 (“MCA”) it should be remembered that A person must be assumed to have capacity unless it is established that he lacks capacity (s1(2) MCA)

The issue of lack of capacity is governed by Section 2(1) confirms:

(1) For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.

The ability to make that decision is time and issues specific is confirmed by section 2(2) which states

 (2) It does not matter whether the impairment or disturbance is permanent or temporary.

Therefore, the MCA created a 2 stage test by first establishing if there is an impairment or malfunction of the brain and secondly deciding if such malfunction or impairment is relevant to the decision at the relevant time.

Section 2(3) goes on to state that a lack of capacity cannot be established merely by reference to:

Therefore, (1) it does not matter whether the impairment or disturbance is permanent or physical and (2) the understanding of the vulnerable adult is both time and issue specific.

Principle 2 of the MCA places an obligation on those posing the question of capacity to use practicable steps to enable the person to make the decision and states:

“A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.”

This is supplemented by Paragraph 2.6 of the MCA Code of Conduct which confirms that it is important to do everything practical to help a person to make a decision for themselves before concluding the person lacks capacity by supporting them in the decision making process and encouraging them to play a big part in the decision-making

Paragraph 2.7 provides examples of how this might be achieved by:

 

• Using a different form of communication

• Providing information in more accessible formats

• Treating a medical condition

Principle 3 goes on to state that: 

“A person is not to be treated as unable to make a decision merely because he makes an unwise decision.”

The MCA Code of Conduct confirms at paragraph 2.10 that everybody has their own values, beliefs, preferences and attitudes. It goes on to say that a person should not be assumed to lack the capacity to make a decision just because other people think their decision is unwise. This applies even if family members, friends or healthcare or social care staff are unhappy with the decision

It is also important at this point to consider Principle 5 which requires the parties making the decision to check and see if the decision which is made and the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the persons rights and freedom of action. 

This is referred to as the “less restrictive alternative “and is re-emphasised in the MCA Code of Conduct at paragraph 2.14. It includes considering whether or not there is a need to act or make a decision at all.

Further assistance can be found in Section 3 MCA which sets out a functional test for deciding if a person is unable to make a decision for himself by stating that the person must be able to

One also needs to take account of a fluctuating mental capacity which is recognised in the MCA Code of Conduct where the following guidance is given at Paragraph 7.34

“The fact that someone has made a property and affairs LPA does not mean that they cannot continue to carry out financial transactions for themselves. The donor may have full capacity, but perhaps anticipate that they may lack capacity at some future time. Or they may have fluctuating or partial capacity and therefore be able to make some decisions (or at some times), but need an attorney to make others (or at other times). The attorney should allow and encourage the donor to do as much as possible, and should only act when the donor asks them to or to make those decisions the donor lacks capacity to make. However, in other cases the donor may wish to handover responsibility for all decisions to the attorney, even those they still have capacity to make.”

It is, of course, the responsibility of the parties to have regard to these matters as the mediator is neither a judge or a professional adviser to the parties. However, the mediator will also be considering these issues throughout the course of the mediation and the parties should not be surprised if the mediator challenges the parties on these principles when they are formulating their views.

The mediator will also be keen to facilitate a settlement Principle 4 of the MCA which confirms that a decision made for a person who lacks capacity must be made in the best interests of that person