COURT OF PROTECTION: IMPORTANT GUIDANCE ON ASSESSING MENTAL CAPACITY

This first appeared in my twice weekly Newsletter – Kerry on Costs, Regulation, Legal Systems And So Much More…

In 

CT v Lambeth LBC [2025] EWCOP 6 (T3) (12 February 2025)

the Court of Protection gave important guidance in relation to assessing mental capacity under the Mental Capacity Act 2005 stressing the importance of adopting a structured approach and the Court of Protection approved a checklist to assist those making the assessment. 

This was an appeal against final declarations regarding residents in care made in respect of an adult who had several significant medical conditions and a complex psychiatric history, but the guidance is of wider application. 

In allowing the individual’s appeal against the finding of the lower court that he lacked capacity to deal with these matters, the Court of Protection noted that there was an evidential divide on capacity between the clinicians and the local authority social workers which the court attributed to the difference in approach taken by them. 

The court was impressed by the form used by the local authority social workers, which promoted a structured approach to the assessment in accordance with the statutory framework in contrast to the less structured approach of the clinicians. 

The court adapted a checklist during the proceedings which may assist those assessing capacity, particularly where the individual lacks insight into their own mental impairments and which I set out below.

Section 1 of the Mental Capacity Act 2005 lists five principles applying to decisions and actions taken under the Act and Section 2 provides that a person that lacks capacity in relation to any matter if at the material time they are unable to make a decision for themselves in relation to it because of an impairment of, or a disturbance in the functioning of, the mind or brain, whether the impairment or disturbance is permanent or temporary. 

The test should be dealt with in two stages: 

• Firstly, whether the individual is unable to make a decision in relation to a particular matter; and 

• Whether the inability is caused by an impairment of, or disturbance in, the functioning of the individual’s mind or brain – see A Local Authority v JB [2021] UKSC 52.

Section 3 of the Mental Capacity Act 2005 provides

(1) For the purposes of section 2, a person is unable to make a decision for himself if he is unable—

            (a)to understand the information relevant to the decision,

            (b)to retain that information,

            (c)to use or weigh that information as part of the process of making the decision, or

            (d)to communicate his decision (whether by talking, using sign language or any other means).

(2) A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means).

(3) The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.

(4)The information relevant to a decision includes information about the reasonably foreseeable consequences of—

            (a)deciding one way or another, or

            (b)failing to make the decision.

At Paragraph 27 of the decision here, the Court of Appeal set out in detail the key principles in assessing capacity as set out in several cases: 

27. The key principles in assessing capacity have been set out in a number of cases (Warrington Borough Council v Y [2023 EWCOP 27 [22 – 34] Hayden J; Kings College NHA Foundation Trust v C&V [2015] EWCOP 80 Hayden J and WBC v Z and Anor [2016] EWCOP 4 Cobb J) and are summarised as follows in A Local Authority v H [2023] EWCOP 4 as follows:

            i) An individual is presumed to have capacity pursuant to s 1(2) of the Mental Capacity Act           2005.

            ii) The burden of proof lies with the person asserting a lack of capacity and the standard of          proof is the balance of probabilities.

            iii) The determination of the question capacity is always decision specific. All decisions,    whatever their nature, fall to be evaluated within the straightforward and clear structure of ss            1 to 3 of the 2005 Act, which requires the court to have regard to ‘a matter’ requiring ‘a decision’. There is neither need nor justification for the plain words of the state to be          embellished.

            iv) A person is not to be treated as unable to make a decision unless all practicable steps to         help him to do so have been taken without success (Mental Capacity Act 2005 s 1(3).

            v) A person is not to be treated as unable to make a decision merely because he or she makes      a decision that is unwise.

            vi) The outcome of the decision made is not relevant to the question of whether the person          taking the decision has capacity for the purposes of the Mental Capacity Act 2005.

            vii) In determining the question of capacity, the court must apply the diagnostic and the functional elements of the capacity pursuant to ss 2 and 3 of the Mental Capacity Act 2005. Thus: a) There must be an impairment of, or a disturbance in the functioning of the mind or         brain (the diagnostic test); and b) The impairment of, or disturbance in the functioning of the          mind or brain must cause an inability to understand the relevant information, retain the relevant information, use or weigh the relevant information as part of the process of making       the decision in question or to communicate the decision made.

            viii) For a person to be found to lack capacity there must be a causal connection between being   unable to make a decision by reason of one or more of the functional elements set out in s 3(1)             of the Act and the ‘impairment of, or a disturbance in the functioning of, the mind or brain’             required by s 2(1) of the Act.

            ix) With respect to the diagnostic test, it does not matter whether the impairment or       disturbance in the functioning of the mind or brain is permanent or temporary.

            x) With respect to the functional test, the question for the court is not whether the person’s         ability to take the decision is impaired by the impairment of, or disturbance in the functioning             of, the mind or brain but rather whether the person is rendered unable to make the decision             by reason thereof.

            xi) An inability to undertake any one of the four aspects of the decision-making process set out    in s 3(1) of the 2005 Act will be sufficient for a finding of incapacity provided the inability is       because of an impairment of, or a disturbance in the functioning of, the mind or brain. The             information relevant to the decision includes information about the reasonably foreseeable         consequences of deciding one way or another. 

The court gave permission to the national mental health charity, Mind to intervene and make written representations and expressed its great gratitude to Mind for those written submissions and the court was clearly influenced by the nature and quality of those submissions. 

The court praised the approach method used by the local authority here and much preferred that to that of the clinicians. 

59. It is a striking feature of this case that the evidential divide on capacity was largely between the clinicians and the social workers. The form used by the local authority in their capacity assessment promoted a structured approach to the assessment in accordance with the statutory framework. It identifies the decision, sets out the relevant information the person must understand, retain, use or weigh in regard to the decision, includes what has been done to enhance the capacity of the person to maximise their ability to make the decision for themselves, and then cross checks the person’s ability to communicate. It then requests a summary of the options that have been discussed with the person. The form then structures each stage of the requirements in s3 MCA 2005 (understand, retain, use, weigh, communicate). In terms of structure the capacity assessment of Ms G, the allocated social worker, in May 2024 was an excellent example of providing both relevant detail at each stage, with clear reasoning to underpin conclusions. This high standard was replicated in the management scrutiny of that assessment by Ms M, the interim Team Manager. In comparison some of the assessments by the clinicians were in a less structured format. I recognise this may have been due to the particular circumstances at the time, but future assessments will benefit from more closely following the statutory framework in the way Dr M detailed in her witness statement in May 2024. As capacity assessments are time and decision specific, the relevant dates when the individual was assessed should always be clearly set out and borne in mind.

The court then adapted checklists provided by Mind, and also by the appellant’s counsel and here is the checklist of ten matters approved by the Court of Protection: 

• 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.

• 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.

• 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.

• 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.

• 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.

• 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.

• 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.

• 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.

• 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.

• 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.