Text:ICLR [2025] WLR(D) 96
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