3.—(1) The following principles apply for the purposes of this Act.
(2) A person must be assumed to have capacity unless it is established that the person lacks capacity.
(3) A person is not to be treated as unable to make a decision unless all practicable steps to help the person to do so have been taken without success.
(4) A person is not to be treated as unable to make a decision merely because the person makes an unwise decision.
(5) An act done, or a decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in the person’s best interests.
(6) 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 of the person’s rights and freedom of action.
Persons who lack capacity
4.—(1) For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time the person is unable to make a decision for himself or herself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.
(2) It does not matter whether the impairment or disturbance is permanent or temporary.
(3) A lack of capacity cannot be established merely by reference to —
(a)
a person’s age or appearance; or
(b)
a condition of the person, or an aspect of the person’s behaviour, which might lead others to make unjustified assumptions about the person’s capacity.
(4) In proceedings under this Act (other than proceedings for offences under this Act), any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities.
(5) Subject to section 21, no power which a person (“D”) may exercise under this Act —
(a)
in relation to a person who lacks capacity; or
(b)
where D reasonably thinks that a person lacks capacity,
is exercisable in relation to a person below 21 years of age.
Inability to make decisions
5.—(1) For the purposes of section 4, a person is unable to make a decision for himself or herself if the person is unable —
(a)
to understand the information relevant to the decision;
(b)
to retain that information;
(c)
to use or weigh that information as part of the process of making the decision; or
(d)
to communicate his or her decision (whether by talking, using sign language or any other means).
(2) A person is not to be regarded as unable to understand the information relevant to a decision if the person is able to understand an explanation of it given to him or her in a way that is appropriate to his or her circumstances (using simple language, visual aids or any other means).
(3) The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent the person from being regarded as able to make the decision.
(4) The information relevant to a decision includes information about the reasonably foreseeable consequences of —
(a)
deciding one way or another; or
(b)
failing to make the decision.
Best interests
6.—(1) In determining for the purposes of this Act what is in a person’s best interests, the person making the determination must not make it merely on the basis of —
(a)
the person’s age or appearance; or
(b)
a condition of the person, or an aspect of the person’s behaviour, which might lead others to make unjustified assumptions about what might be in the person’s best interests.
(2) The person making the determination must consider all the relevant circumstances and, in particular, take the steps specified in subsections (3) to (9).
(3) He or she must consider —
(a)
whether it is likely that the person will at some time have capacity in relation to the matter in question; and
(b)
if it appears likely that the person will, when that is likely to be.
(4) He or she must, so far as is reasonably practicable, permit and encourage the person to participate, or to improve the person’s ability to participate, as fully as possible in any act done for the person and any decision affecting the person.
(5) Where the determination relates to life-sustaining treatment, he or she must not, in considering whether the treatment is in the best interests of the person concerned, be motivated by a desire to bring about the death of the person concerned.
(6) Where the determination relates to the giving, refusal or revocation of —
(a)
appropriate consent of the person concerned under the Human Biomedical Research Act 2015 — he or she must take into account such matters, considerations and procedures as may be prescribed under Part 3 of that Act; or
(b)
consent of the person concerned under any written law relating to a clinical trial — he or she must take into account such matters, considerations and procedures as may be prescribed in such written law.
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(7) Where the determination relates to the disposition or settlement of the person’s property, he or she must be motivated by a desire to ensure, so far as is reasonably practicable, that the person’s property is preserved for application towards the costs of the person’s maintenance during the person’s life.
(8) He or she must consider, so far as is reasonably ascertainable —
(a)
the person’s past and present wishes and feelings (and, in particular, any relevant written statement made by the person when the person had capacity);
(b)
the beliefs and values that would be likely to influence his or her decision if the person had capacity; and
(c)
the other factors that the person would be likely to consider if the person were able to do so.
(9) He or she must take into account, if it is practicable and appropriate to consult them, the views of —
(a)
anyone named by the person as someone to be consulted on the matter in question or on matters of that kind;
(b)
anyone engaged in caring for the person or interested in the person’s welfare;
(c)
any one of a lasting power of attorney granted by the person; and
(d)
any deputy appointed for the person by the court,
as to what would be in the person’s best interests and, in particular, as to the matters mentioned in subsection (8).
(10) The duties imposed by subsections (1) to (9) also apply in relation to the exercise of any powers which —
(a)
are exercisable under a lasting power of attorney; or
(b)
are exercisable by a person under this Act where the person reasonably believes that another person lacks capacity.
(11) In the case of an act done, or a decision made, by a person other than the court, there is sufficient compliance with this section if (having complied with the requirements of subsections (1) to (9)) the person reasonably believes that what the person does or decides is in the best interests of the person concerned.
(12) In subsection (2), “relevant circumstances” are those —
(a)
of which the person making the determination is aware; and
(b)
which it would be reasonable to regard as relevant.
