Section 1(4) Of The Mental Capacity Act 2005 – What Is An Unwise Decision?

The Mental Capacity Act 2005 (MCA) sets out the guidelines as to when a person will be assessed as lacking capacity to make a decision. There is a presumption in favour of capacity and a person is assumed to have capacity unless it has been established that person lacks capacity after taking all practicable steps to assist that person in making a decision. Section 1(4) also sets out that a person is not to be treated as lacking capacity because they make an unwise decision. This raises the question as to whether there is a fine line between a person lacking capacity and a person making an unwise decision.

Section 3 of the MCA defines when a person is held to be unable to make decisions. In contrast, this provides guidance on when a person will be held to retain capacity. A person, therefore, retains capacity when that person is able to:

Breaking this down and applying it to what may be deemed an unwise decision, the Protected Party will need to be able to show that he is able to make an informed decision and is therefore aware of its consequences. The Protected Party being able to show he is able to make an informed decision will usually demonstrate that he has the capacity to make that decision and therefore the Court of Protection’s jurisdiction – in respect of that decision at least – falls away. The Court is however aware, that where a decision is so irrational it may be an indication that the Protected Party does in fact lack capacity. This was considered in the case of A County Council v MS and another.

Case background

A County Council v MS and another (2014) related to a Protected Party who wanted to donate 10% of his recent inheritance to his church. This was opposed by the Protected Party’s family as they felt the Protected Party was pressured into making the donation and the Protected Party was only making the donation because he had been told a person should make an annual donation of 10% to the church. Further to this, the Protected Party was not a member of the church, and such donations would result in a loss of his benefits, at which point the family commented there would come a point when the Protected Party becomes reliant on them and this donation brought that point forward. In response, the Protected Party felt this was his religion and the donation would be a good investment as he would receive riches beyond his dreams and if he did not, he would be punished. The Protected Party also demonstrated this was a practice he had followed for many years.

On the face of it, this may have been deemed to be such an unwise decision that it suggests the Protected Party would have lacked capacity, as it appeared the Protected Party treated this as a get rich quick scheme. On further investigation, however, it was clear the Protected Party was fully aware of the consequences and his faith behind the donation. The Court felt the Protected Party was able to clearly set out the decision and therefore it was held the Protected Party retained capacity and was able to make the decision to make the donation.

Comment

The Court of Protection is, therefore, able to distinguish between a person making an unwise decision and a person lacking capacity. The key is whether that decision is made on an informed basis with a real understanding of that decision’s consequences.