B Mahendra explores issues of responsibility, risk and capacity
The advent of the Mental Capacity Act 2005 (MCA 2005) means professionals of all kinds—not simply lawyers—are now conscious of the importance of bearing in mind issues of capacity whenever dealing with clients and patients, and making arrangements to determine the same if there is any doubt. Capacity, to put it at its simplest, concerns an understanding of the relevant issues and being able to come to a proper decision on the relevant matters.
The decision made needs only to be valid and it does not matter if it is eccentric, bizarre or capricious. An important issue that can arise is not capacity per se but the possible interaction between capacity and undue influence.
This phenomenon may not arise when it comes to dealing with professionals such as a lawyer in relation to litigation or a doctor when it comes to decision making in relation to whether to accept or refuse medical treatment, but assumes importance where transactions such as disposal of estates and property, where decision making can be influenced for good or ill by relations
