Commentary on Sections Part 1 – Principles Section 6 – Compliance with section 1(2)
This section provides that, for any proceedings under the Act (that is, court, Tribunal or HSC trust panel proceedings) or any other legislation, the standard of proof to be applied where a question arises about whether a person lacks capacity (as defined in section 3) should be decided on the balance of probabilities. That is to say, it is more likely than not that the person lacks capacity in relation to the matter in question. It follows, therefore, that it is up to the person claiming a lack of capacity to prove it on the balance of probabilities. Otherwise, where a question arises about whether a person lacks capacity (as defined in section 3), compliance with section 1(2) is achieved if the person reasonably believes that the person lacks capacity in relation to the matter (having taken reasonable steps to establish this) and in arriving at that belief, the principles in section 1(3) to (5) and section 5 must have been complied with.
This section is the first occurrence in the Act where the capital letter “P” is used to refer to a person who is 16 or over and lacks capacity. This is to make complex provisions easier to follow particularly where a number of different people are being referred to.