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What's the benchmark?

One of the most overlooked and misunderstood elements of assessing mental capacity is that of the threshold of understanding

14 September 2015

When assessing mental capacity it is important that we don't set our expectations about the required level of understanding too high. Various judgements from the Court of Protection have made it very clear that setting the bar too high makes the MCA unworkable, because it creates an unrealistic criteria, which even a person with capacity would struggle to meet.

Setting the bar

So how high do we set the bar, I hear you cry.

In certain scenarios this has been established in law, for example when assessing someone's capacity to have sexual relationships, other times it is left up to the individual to decide. When the threshold has not been previously established in law, from my experience and from discussions with various legal bodies, I believe it is necessary to use the 'average man on the street' test (sometimes called &#...

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