What do we mean by ‘Salient Information’?

When it comes to assessing mental capacity, one commonly asked question is "How much does a person actually need to understand?’"

The answer lies in identifying what is often referred to as the 'salient information'.

What is Salient Information?

Salient information is just another way of saying ‘the relevant information a person must understand in order to make a decision’.

In other words, it’s the core information related to the specific decision in question. Under the Mental Capacity Act (2005), a person is considered to lack capacity if they can't 'understand the information relevant to the decision'.

Salient information is this 'information relevant to the decision'; the important facts, benefits, risks and consequences that a person needs to grasp.

Identifying this salient information is crucial for assessments because it defines the extent of what the individual needs to know. It also helps keeps capacity assessments focused: our job as assessors is to work out what qualifies as these ‘must-know’ bits of information.

If the person can’t understand, retain, weigh or use this salient information (even with appropriate support), then they are deemed to lack capacity.

A key element of this ‘salient information’ is that it makes capacity decision specific. For example, the relevant information for a Will is very different to that required for deciding where to live.

It also means that the relevant information for the same decision may change from person to person and situation to situation. For example, I imagine that what Elon Musk may have to consider when it comes to the management of his property and financial affairs, is very different to yours or mine.

A Realistic Threshold: Key Facts, Not Every Detail

When it comes to trying to identify the salient information it's important that we keep it reasonable. The courts have made it clear that we shouldn’t expect a person to know everything about everything, see for example, CC v KK and STCC [2012]), in which Mr Justice Baker emphasized that “the person need only comprehend and weigh the salient details relevant to the decision and not all the peripheral detail.”

Crucially, we mustn’t set the bar too high. We shouldn’t expect a greater level of understanding or knowledge from a person with cognitive impairments than we would from anyone else (and vice versa).

Let’s face it, most of us make significant decisions without knowing every technical detail; we just focus on the main pros and cons.

So here are my top tips for assessors:

1) Keep it focused and person-centred. When assessing capacity, always start by asking yourself, “What are the must-know points for this decision?”

2) Remember that capacity is decision-specific, so avoid generalisations like “lacks capacity in all areas”. Be precise about the decision in question.

3) Ensure your expectations around understanding remain reasonable: the person doesn’t need to know every detail as long as they grasp the fundamental facts and likely foreseeable consequences.

4) Clearly document what information you deem to be relevant and how the person handled that information. This will help keep your assessment focused and will also help other people understand your rationale.

So, to sum it up, the term ‘salient information’ is just another way of saying ‘the relevant information’.

Understanding what this is for a specific decision is key to being able to determine whether a person has capacity and also in supporting them to understand it. Remember; this information has to be reasonable - we can’t expect everyone to know everything about everything!