“Capacity” is a legal construct, not a medical diagnosis, and therefore, it can be difficult to determine. Despite this, the medical profession has influenced the area of capacity and using medical parameters, has developed “screening tests” intended to be guidelines or “red flags” to investigate further.
The most common screening test is the Mini-Mental State Examination (MMSE), which has 11 questions scored out of a total of 30 points. It includes testing of cognitive functions including orientation to time, orientation to place, registration of 3 words, attention and calculations, recall of 3 words, language, and visual spatial ability. The test results are used to screen an individual for cognitive impairment. When an individual receives a score below a certain MMSE value (typically 23/30), further cognitive assessment and medical investigation is generally warranted.
As with all screening tests, this test has limitations. It does not specifically test for frontal brain functions and is weighted heavily on the language and short-term memory skills. It is also influenced by factors such as native language, education and IQ.
Another screening test , the clock-drawing test, is very simple to give. You draw a circle and tell the person “this is a clock face, please put in the numbers so that it looks like a clock”. The person is then asked to set the time to ten past eleven. It is a useful test for cognition as it subsumes many different brain functions such as concentration, memory and reconstruction, numerical knowledge, abstract thinking, motor skills, and is useful for a global qualitative assessment.
There are other tests such as the “delayed word recall”, and the verbal fluency or FAS test which consists of asking the person to list as many words beginning with the letters F, A or S (phonemic prime) in a period of one minute.
The screening tests are intended to detect cognitive impairment, and are not designed to measure how that impairment would affect a person’s decision making ability or ability to provide instructions to a lawyer, for example.
Don’t be lazy. We as lawyers need to educate on the limitations of these tests and insist upon “more” exploration and confirmation before accepting these test results as determinative.
Lesson Learned: Remember that “capacity” is a legal construct, and while “success or failure” on screening tests may well be an indicator of cognitive impairment, none are definitive tests of incapacity, and none taken alone should be used to determine capacity.
Until Next Time,
Jasmine Sweatman
