chapter  3
8 Pages

Guiding principles and common pitfalls

ByTracey Ryan-Morgan, Simon Morgan

This chapter focuses on how not to undertake assessments of capacity, in that it has clearly framed the pitfalls to avoid along the way. These include influence, suggestibility, coercion, conflating capacity with Best Interests, allowing for capricious decision-making and the changing of minds at a level permitted to those whose capacity is not in question. A measurement of capacity issue requiring consideration is that relating to whether it is a normative or threshold/criterion-related concept. In other words, “will individual performances be compared with those of a representative sample of presumably competent individuals or with a pre-established performance criterion?” The problem with the former approach is that the normative sample will have to be matched for age, gender, educational attainment, socio-economic status, health, medications and numerous other variables. Whilst legal professionals and clinicians hold each other, generally speaking, in high positive, mutual regard, there can be fundamental misunderstandings of the strengths and powers associated with their respective roles and functions.