Capacity – A Complex Web

The question of capacity is the all-important and central issue in the Court of Protection but too often, there is a misconception that capacity is an all-or-nothing scenario, when the reality is much more complex and multi-faceted. Capacity is also decision-specific, meaning that an individual may have the capacity to make some simple decisions, but not to decide on more complex matters.

Assessing mental capacity

The Court of Protection cannot intervene unless it is proven that a vulnerable party lacks capacity, meaning that the role of capacity assessors is essential and a capacity report is usually the critical starting point. Crucially, a capacity report must home in on the issue(s) that cause real concern – for example, if it is believed that the protected party lacks the ability to decide whom he or she should be in a relationship with, the expert must explore this with them.

There are six principles that the Court must apply when considering the question of capacity, as set out by MacDonald J in Kings College Hospital NHS Foundation Trust v C & V [2015] EWCOP 80. These principles should be addressed by an expert assessor when producing a capacity report for the Court of Protection, particularly as capacity reports and opinions are open to challenge, where there is a dispute between other parties in the proceedings.

The factors that must be considered are:

1. A person is assumed to have capacity unless proven otherwise on the balance of probabilities;
2. Capacity is decision-specific and the structure in sections one to three of the Mental Capacity Act should be applied when assessing the protected party’s ability to make that particular decision;
3. A person is only treated as unable to make a specific decision where all practicable steps to help him/her have been unsuccessful;
4. A person is not to be treated as unable to make a decision merely because that decision is unwise;
5. The outcome of the decision has no bearing on the capacity to make it;
6. A person is unable to make a decision for himself/herself if he/she is unable to:
   1. Understand the information relevant to that decision;
   2. Retain that information;
   3. Use the information to make the decision; and
   4. Communicate the decision

If the above inabilities relate to an “impairment of, or disturbance in the functioning of, the mind or brain” (e.g. learning difficulties or dementia), this is usually sufficient to support a finding of a lack of capacity.

Case law

In A Local Authority v AB & Anor [2020] EWCOP 32, this issue arose when an adult with moderate learning difficulties wanted to pursue an intimate relationship with an unsavoury individual. The protected party’s mother understandably had concerns and criticised the findings of a capacity expert, whom she alleged had not taken into account the protected party’s past history of having had several terminations, claiming she did not understand contraception.

Due to the fact that the protected party showed awareness of this issue, and did consider it when presented with information by the capacity expert, the Court upheld the expert’s opinion that she had the capacity to decide for herself.

Legally, the ability to understand and weigh up information is the method by which capacity experts and Judges assess protected parties, rather than analysing the wisdom of the decision they have made. To go further than this risks infringing an individual’s human rights, so whilst this decision may be frustrating for concerned relatives, the Court of Protection can only safeguard individuals without capacity and has no mandate to interfere where a protected party can make a decision for themselves.