Considerations When Assessing Mental Capacity In The Court Of Protection

Assessing mental capacity is a vital safeguard in ensuring individuals can make informed decisions about their lives. Under the Mental Capacity Act 2005 (MCA), capacity is judged through a structured two-stage test. Firstly, it must be established whether the person has an impairment or disturbance in the functioning of their mind or brain. Then, it must be determined whether this affects their ability to make a specific decision at the required time.

The Act sets out clear criteria: the person must be able to understand, retain, weigh up, and communicate relevant information. Importantly, capacity is decision-specific and time-specific, and individuals are presumed to have capacity unless proven otherwise. The Act also emphasises supporting people to make decisions and respecting their right to make unwise choices. This legal framework ensures that any intervention is both necessary and in the person’s best interests.

Challenges in assessing mental capacity

Assessing a person’s mental capacity is not straight forward as there are no objective measures and each case will have to be based on their facts. To assist the Court of Protection, expert evidence will be obtained that makes findings on a person’s mental capacity. The expert evidence is not conclusive and only provides guidance to the Court, and given the difficulty when assessing capacity, it is common for there to be conflicting expert evidence. This was seen in the recent case. This case concerned an individual who was homeless and suffered from mental health.

In this case, a dispute arose between the hospital and local authority over his capacity to decide on residence and care. Multiple assessments produced conflicting conclusions. The hospital sought declarations that the individual lacked capacity, while the local authority and Official Solicitor argued he had capacity. The individual was thought to lack capacity because he could not use or weigh the impact of his mental impairments on his decision-making. The Judge found the individual lacked insight into his increasing frailty and impulsivity, which affected his ability to assess the consequences of refusing care and treatment, undermining informed decision-making.

This decision was appealed by the hospital and the Official Solicitor on the basis that they felt the Judge conflated the two-stage test under the Mental Capacity Act 2005 by treating the individual’s lack of insight into his mental impairments as determinative of incapacity, rather than first assessing the individual’s ability to understand, retain, and weigh relevant information independently. The appeal Judge agreed and highlighted that when considering capacity, the Court should consider the following:

Comment

The approach adopted by the Judge in this instance explained clearly how they had considered the individual’s capacity and therefore reached the finding of capacity. This case should act as key guidance to practitioners when considering whether or not a Protected Party lacks mental capacity.