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Question
Are there any good reasons not to use the Mental Capacity Act for everyone?
Guidance
At first sight it might seem obvious that if we are asking whether a person has capacity or not we should be using the same test whether that person happens to be aged 5 or 95. After all if the question is whether they have the understanding and intellectual abilities to make a decision their age appears not to be relevant. In legal terms this would lead to an argument that we should use the Mental Capacity Act test of legal capacity for all people.
However, the issues is more complicated than that. One reason is that the Mental Capacity Act requires the person’s lack of capacity “because of an impairment of, or a disturbance in the functioning of, the mind or brain.” The problem is that a five year old who did not understand the complexities of a medical procedure due to their young age would not necessarily satisfy that definition because their mind would not be impaired or disturbed. We could deal with that problem in several ways. One would be by simply stating adding in age (or perhaps young age) as an additional factor which could cause the incapacity for the purposes of the Act. Second would be do away with the requirement that the incapacity has a particular cause. Why should we allow someone to make a decision if they lack the capacity to do so, regardless of the cause? Either of these ways could resolve the dilemma. However, two problems remain. One is that the Mental Capacity Act presumes a person has capacity until it is shown otherwise. But it seems odd to presume a two year old has capacity and require a doctor to give evidence that an assessment has shown they do not. So we could presume a lack of capacity up to a certain age, but this might raise objections that the law is being as age discriminatory as it is at the moment. The second is that one of the reasons to question a child’s lack of capacity is a lack of maturity. This issue is not really captured in the current Mental Capacity Act test. Adults we assume have had enough time in the world to get to know its ways. Children perhaps have not. They may, if very bright, have intellectual understanding and rationality, but we might think that experience of the world is required too. That said many children seem far more in touch with worldly reality than many adults!