Does a bad memory mean that you lack capacity to make a decision?

Mental capacity to be able to make a decision requires that you are able to retain information relevant to making the decision for long enough to be able to weigh it up, make and communicate a decision (s.3 MCA 2005). Therefore, there is a common misconception that just because a person  has a bad memory, that they are unable to have capacity to make a decision.

The legal position is that a person only has to be able to remember information for the length of the decision making process. This begs the question of what is the length of the decision making process.

Legally, a distinction has been drawn between two different types of decisions;  micro decisions, which are one off decisions, and macro decisions, which are or longer term decisions. This was looked at in great detail in the case of Royal Borough of Greenwich v CDM [2019] EWCOP 32. In respect of a micro decision, such as signing a Will or making a Lasting Power of Attorney, as long as the person making the decision can remember the information relevant to the decision at the point that they are giving instructions and the document is being executed, then that is sufficient to have mental capacity to make a decision. This is different to macro decision making, which requires that a number of smaller decisions are made over the length of time, and at any point during that time the person making the decision may need to make a decision about an unforeseen intervention. When considering macro decisions, the person making the decision will need to be able to retain the information relevant ot the decision over a much longer timespan. An example that is often given is that of care planning, which requires a number of smaller decisions are made on an ongoing basis, for example whether to accept assistance from carers, where to live, whether to go to a lunchtime club, and the risks in not taking medication.

Whilst a person does need to be able to remember information for long enough to weigh it up as part of a decision making process, a mental capacity assessment is not a memory test. A person can take information into the assessment to remind themselves of the risks, benefits and other information that may assist them in making a decision, provided that the information doesn’t serve as a prompt for the decision itself or get in the way of the person’s ability to consider and weigh up the information.  The question in a mental capacity assessment is whether they are able to understand the information relevant to the decision, and apply it, utilize it appropriately. It isn’t a case of simply reading off the sheet of paper. It is an active process, and having a bad memory doesn’t necessarily preclude you from having capacity to make a decision.

 To gain access to the entire interview, please fill out the following form.