CT v London Borough of Lambeth [2025] EWCOP 6 (T3)
Checklist
60. Both Ms Bicarregui and Mr Allen have provided checklists to assist those assessing capacity. Whilst not wanting to add to the growing industry of checklists, I recognise they may be useful and have adapted them as follows:
(1) The first three statutory principles in s 1 MCA 2005 must be applied in a non-discriminatory manner to ensure those with mental impairments are not deprived of their equal right to make decisions where they can be supported to do so.
(2) In respect of the third principle regarding unwise decisions, particular care must be taken to avoid the protection imperative and the risk of pathologising disagreements.
(3) As set out in A Local Authority v JB [2021] UKSC 52M, whether the person is able to make the decisions must first be addressed. Only if it is proven that one or more of the statutory criteria are not satisfied should the assessor them proceed to consider whether such inability is because of a mental impairment.
(4) Those assessing capacity must vigilantly ensure that the assessment is evidence-based, person-centred, criteria-focussed and non-judgmental, and not made to depend, implicitly or explicitly, upon the identification of a so-called unwise outcome.
(5) Insight is a clinical concept, whereas decision making capacity is a legal concept. Capacity assessors must be aware of the conceptual distinction and that, depending on the evidence, a person may be able to make a particular decision even if they are described as lacking insight into their general condition.
(6) In some cases, a lack of insight may be relevant to, but not determinative of, whether the person has a mental impairment for the purposes of s2 MCA 2005.
(7) When assessing and determining the legal test for mental capacity, all that is required is the application of the statutory words in ss2-3 MCA 2005 without any gloss; having 'insight' into mental impairment is not part of that test.
(8) Relevant information will be different in each case but will include the nature of the decisions, the reason why the decision is needed, and the likely effects of deciding one way or another, or making no decision at all.
(9) The relevant information is to be shared with the individual and the individual should be supported to understand the relevant information. The individual is not required to identify relevant information him/herself.
(10) If a lack of insight is considered to be relevant to the assessment of capacity, the assessor must clearly record what they mean by a lack of insight in this context and how they believe it affects, or does not affect, the person's ability to make the decision as defined by the statutory criteria, for example to use/weigh relevant information.
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Court of Protection
CT v Lambeth London Borough Council
[2025] EWCOP 6Not on Bailii!
2025 Feb 4; 12
Theis J
Mental capacity— Capacity to make decisions— Assessment of capacity— Hospital trust seeking declarations of incapacity in respect of cognitively impaired adult— Judge concluding adult lacking capacity and authorising deprivation of liberty— Whether judge erring in approach to assessment of capacity— Guidance on principles to be applied— Mental Capacity Act 2005 (c 9), ss 1, 2, 3
The hospital trust sought declarations that an adult, who had significant medical conditions and a cognitive impairment and was partially sighted, lacked capacity within the meaning of section 2 of the Mental Capacity Act 2005 to conduct proceedings and make decisions about his residence and care needs. The judge concluded that the adult lacked capacity to make decisions about his residence and care and made an order that it was in his best interests for him to be deprived of his liberty at a hospital while the local authority searched for a supported living placement. The adult appealed on the ground, inter alia, that the judge had taken the wrong approach to the issue of capacity by starting with the adult’s mental impairments and deciding that they led to his inability to take decisions, rather than starting with whether the adult could understand/retain/use or weigh/communicate the relevant information and then, only if he was unable to do so to, going on to consider whether that inability was because of his mental impairment.
On the appeal—
Held, appeal allowed. (1) The authorities established that a two-stage test was to be applied, first asking whether the person was unable to make a decision in relation to a particular matter and then, only if they were, going on to ask whether that inability was caused by an impairment of or disturbance in the functioning of the person’s mind/brain. What was required was a careful delineation of the relevant information and then an assessment, in accordance with the statutory framework, of whether the individual could understand, retain, use/weigh that relevant information and communicate the decision. It was only when that process concluded that the individual was unable to make a decision within that statutory framework that the court then had to consider whether the inability was because of an impairment of or a disturbance in the functioning of, the mind. In the present case, the judge had conflated the two stages thereby creating a circular approach that risked leading to the inevitable conclusion that those who had a mental impairment lacked capacity, an approach which undermined the principles and safeguards in the Mental Capacity Act 2005. As a result of the judge’s erroneous approach he had failed to conduct the functional test in accordance with the requirements of the 2005 Act and had not properly taken into account the evidence that pointed towards the subject having a better understanding that his physical state had changed progressively and having insight into his increasing frailty (paras 28, 53–55, 57, 58, 61).
Dicta of Lord Stephens JSC in A Local Authority v JB [2022] AC 1322B, paras 66–79, SC(E) applied.
Kings College NHS Foundation Trust v C [2016] COPLR 50, Ct of Protection, WBC v Z [2016] EWCOP 4M, Ct of Protection, A Local Authority v H (2023) 192 BMLR 1, Ct of Protection and dicta of Hayden J in Warrington Borough Council v Y [2023] EWCOP 27B at [22]–[34] considered.
Principles to be applied when conducting assessments of capacity (para 60).
Anna Bicarregui (instructed by Irwin Mitchell LLP) for the vulnerable adult, by the Official Solicitor.
Hilton Harrop-Griffiths (instructed by Legal Services and HR, Lambeth London Borough Council) for the local authority.
The integrated care board did not appear and was not represented.
The intervener, Mind, by written submissions only.
Jeanette Burn, Barrister
Referenced Legislation
Mental Capacity Act 2005 (c 9), ss 1, 2, 3