Is the Wisdom of a Person's Decision Relevant to Their Capacity to Make That Decision? (Advance)
Significant uncertainty exists around the current test of capacity. It is agreed that the law is primarily directed at ‘function’; that is, an assessment of a person’s decision-making ability. However, there is conflicting authority over whether there is an ongoing role for ‘outcome’, that is, consideration of the perceived wisdom of the decision made by the person whose capacity is assessed. Recent cases in Australia and England and Wales have indicated that ‘outcomes’ are irrelevant to capacity, meaning any decision in which the perceived wisdom of a decision was weighed in the determination of capacity would be incorrectly decided. However, this article argues that these recent statements are incorrect interpretations of the applicable law in those jurisdictions. Moreover, it is argued that assessing capacity, even under a functional test, is an inherently normative procedure, from which consideration of the outcome of the decision cannot be fully extricated. Therefore, the challenge is not to prohibit consideration of outcomes in capacity assessment, but rather to manage their consideration, to ensure that they do not overwhelm functional capacity assessment. Suggestions for how this difficult balance can be performed are made.