View source for CT v London Borough of Lambeth (2025) EWCOP 6 (T3)

{{Case
|Date=2025-02-12
|NCN=[2025] EWCOP 6 (T3)
|ICLR=[2025] WLR(D) 96
|ICLR ID=2025000935
|Court=Court of Protection
|Judges=Theis
|Parties=CT, London Borough of Lambeth, NHS North Central London ICB, Mind
|Sentence=Insight and capacity
|Summary=(1) The first instance judge had erred by including knowledge of the patient CT's psychiatric diagnoses and their consequences in the list of relevant information, as such an "insight" requirement is circular and risks leading inevitably to the conclusion that the patient lacks capacity; (2) that approach wrongly failed to delay consideration of mental impairment until after the functional assessment; (3) the judge had not properly taken into account recent evidence that CT had insight into his increasing frailty. The appeal judge added to the "growing industry of checklists" with 10 points to assist those assessing capacity.
|Detail===Checklist==
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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 52, 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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|Subject=Other capacity cases
|News=Yes
|RSS pubdate=2025-02-13 12:40:17 PM
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