Literature Review on Provision of Appropriate and Accessible ...

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or she is unable to make a decision for him or herself in relation to the
matter because of an impairment of, or a disturbance in the functioning
of, the mind or brain (Section 2(1)).
Functional test of capacity
The Mental Capacity Act goes on to say (Section 3) that a person is unable
to make a decision due to a lack of mental capacity, when he is unable to:
• Understand the information relevant to the decision, (including
understanding the likely consequences of making, or not making
the decision - Section 3(4))
• Retain that information
• Use or weigh that information as part of the process of making
the decision
• Communicate his/her decision (whether by talking, using sign
language or any other means).
<strong>Literature</strong> <strong>Review</strong> on Provision of Appropriate and Accessible
Support to People with an Intellectual Disability who are
Experiencing Crisis Pregnancy
The key point about this definition of capacity, as well as similar
definitions in other jurisdictions, is that capacity is function specific. A
person’s capacity must be assessed specifically in terms of their capacity
to make a particular decision at the time it needs to be made. Thus, a
person may be competent to make certain decisions but not others.
Many of the provisions of the Mental Capacity Act, 2005, are based on
existing common-law provisions. The Act clarifies and improves upon
these principles and builds on current good practice, which is based on
the principles. [38]
38 Para 1.6 of the Mental Capacity Act, Code of Practice.