Assessing capacity: the principles

Alex Ruck Keene KC (Hon) reports on a capacity masterclass from MacDonald J in the Court of Protection, and highlights an updated capacity guide from 39 Essex Chambers.

In 2015, in Kings College Hospital NHS Foundation Trust v C and V [2015] EWCOP 80, MacDonald J provided both the then-authoritative summary of the principles to apply in assessing capacity, and a masterclass in the application of those principles to a complex case. In North Bristol NHS Trust v R [2023] EWCOP 5, MacDonald J has updated his authoritative summary to take account of the Supreme Court decision in A Local Authority v JB [2021] UKSC 52, and again provided a masterclass in the application of those principles.

The case concerned the question of the capacity and (if she lacked capacity in the relevant domains) the best interests of a woman as regards her birth arrangements. The woman, R, was a serving prisoner; she was a failed asylum contact and wished no contact with her mother who was understood to be present in England. She had had two previous children, both of whom had been removed from her care, one to adoption and one to placement with her mother. Little was known about the circumstances of her current pregnancy. She had had continued deterioration in the growth of her baby, and a number of other complications, which the clinicians involved considered meant that only a Caesarean section was consistent with recommended safe obstetric practice in this case. R had not said that she did not want a Caesarean section, but the clinicians were concerned as to whether she had capacity to make the decision. One doctor, a Doctor Q, considered that she had capacity to make decisions about her birth arrangements; none of the other clinicians considered this to be so.  However, as MacDonald J observed at paragraph 44:

[…] a difficulty in this case has been in identifying whether R is suffering from an impairment of, or a disturbance, in the functioning of the mind or brain. In particular, in circumstances where those who have assessed R are (with the possible exception of Dr Q) agreed that her presentation suggests that the functioning of her mind is impaired, but where they have not been able to arrive at any formal diagnosis for a presentation variously described as “unusual” and “baffling”, this case has given rise to the question of whether a formal diagnosis in respect of R is necessary in order for the terms of s.2(1) of the 2005 Act to be satisfied. 

As MacDonald J had set out in the C case, but which usefully bear reproducing here, the ‘cardinal principles’ that must be followed are that:

i)   A person must be assumed to have capacity unless it is established that they lack capacity (Mental Capacity Act 2005 s. 1(2)). The burden of proof lies on the person or body asserting a lack of capacity, in this case the Trust, and the standard of proof is the balance of probabilities (Mental Capacity Act 2005 s. 2(4) and see KK v STC and Others [2012] EWHC 2136 (COP)at [18]);[1]

ii)   Determination of capacity under Part I of the Mental Capacity Act 2005 is always ‘decision specific’ having regard to the clear structure provided by ss 1 to 3 of the Act (see PC v City of York Council [2014] 2 WLR 1at [35]). Thus, capacity is required to be assessed in relation to the specific decision at the time the decision needs to be made and not to a person’s capacity to make decisions generally;

iii)  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));

iv)  A person is not to be treated as unable to make a decision merely because he or she makes a decision that is unwise (see Heart of England NHS Foundation Trust v JB [2014] EWHC 342 (COP)at [7]). 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 (see R v Cooper [2009] 1 WLR 1786at [13] and York City Council v C [2014] 2 WLR 1 at [53] and [54]);[2]

v)   Pursuant to s. 2(1) of the 2005 Act a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain. It does not matter whether the impairment or disturbance in the functioning of the mind or brain is permanent or temporary (Mental Capacity Act 2005 s. 2(2)). It is important to note that 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 (see Re SB (A Patient: Capacity to Consent to Termination) [2013] EWHC 1417 (COP)at [38]);

vi)   Pursuant to s. 3(1) of the 2005 Act a person is “unable to make a decision for himself” for the purposes of s.2(1) of the Act if he is unable (a) to understand the information relevant to 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.

vii)  An inability to undertake any one of these 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 (see RT and LT v A Local Authority [2010] EWHC 1910 (Fam) at [40]). 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 diagnostic element of ‘impairment of, or a disturbance in the functioning of, the mind or brain’ required by s. 2(1) of the Act, i.e. for a person to lack capacity the former must result from the latter (York City Council v C [2014] 2 WLR 1 at [58] and [59]);

viii)  The information relevant to the decision includes information about the reasonably foreseeable consequences of deciding one way or another (Mental Capacity Act 2005 s. 3(4)(a));

ix)  The threshold for demonstrating capacity is not an unduly high one (see CC v KK & STCC [2012] EWHC 2136 (COP)at [69]).

In the North Bristol case, MacDonald J noted (at paragraph 43) that:

The foregoing authorities now fall to be read in light of the judgment of the Supreme Court in A Local Authority v JB [2022] AC 1322. The Supreme Court held that in order to determine whether a person lacks capacity in relation to “a matter” for the purposes of s. 2(1) of the Mental Capacity Act 2005, the court must first identify the correct formulation of “the matter” in respect of which it is required to evaluate whether P is unable to make a decision. Once the correct formulation of “the matter” has been arrived at, it is then that the court moves to identify the “information relevant to the decision” under section 3(1) of the 2005 Act. That latter task falls, as recognised by Cobb J in Re DD, to be undertaken on the specific facts of the case. Once the information relevant to the decision has been identified, the question for the court is whether P is unable to make a decision in relation to the matter and, if so, whether that inability is because of an impairment of, or a disturbance, in the functioning of the mind or brain. 

Applying these broad principles, MacDonald J turned to the specific question before him, identifying (at paragraph 57) that there were four questions he had to address:

First, what is the “matter”, i.e. what is the decision that R has to make. Second, what is the information relevant to that decision. Third, is R unable to make a decision on the matter. Fourth, if R is unable to make a decision on the matter, is that inability caused by a disturbance in the functioning of her mind or brain.

As to the first question, MacDonald J considered as being too broad the formulation advanced by the Official Solicitor, namely “whether to carry her baby to the point of natural childbirth or to have the baby delivered earlier and, if so, whether to do so by induction or Caesarean section.” This was because:

59. In this context, in circumstances where R has had continual deterioration in growth of her baby from 28 weeks and that her abdominal circumference now well below the 5th centile, indicating a growth restricted, oligohydramniotic pregnancy, the decision R is being asked to make is whether or not to undergo the procedure clinically indicated in those circumstances. This does not mean that the option of carrying the baby to term followed by labour either induced or natural is irrelevant. But in light of the fact that R’s treating team can now offer for decision only one clinically safe course, it is relevant as information to be retained, understood, weighed or used when deciding the matter, rather than as part of the proper formulation of the matter to be decided. (emphasis added)

Turning then to the relevant information, MacDonald J  reminded himself that the task had to be undertaken by reference to the specific facts of this case because:

61. Human decision making is not standardised and formulaic in nature in that we do not, at least consciously, break a decision down carefully into discrete component parts before taking that decision. In addition, decisions are always taken in a context, with the concomitant potential for a myriad of other factors, beyond the core elements of the decision, to influence the decision being taken. This has the potential to make the task of creating a definitive account of the information relevant to a particular decision a challenging one. This difficulty can be addressed however, by acknowledging that in order to demonstrate capacity, a person is not required or expected to consider every last piece of information in order to make a decision about the matter, but rather to have the broad, general understanding of the kind that is expected from the population at large (see Heart of England NHS Foundation Trust v JB [2014] EWHC 342 (COP)at [25]). Within this context, the Mental Capacity Act Code of Practice at [4.16] states relevant information includes “the nature of the decision”, “the reason why the decision is needed” and “the likely effects of deciding one way or another, or making no decision at all”. 

In the particular circumstances of R’s case, this meant that:

62. […] the information relevant to the decision on the matter in this case can usefully be derived from the questions that might reasonably be anticipated upon a member of the population at large being told that their doctor is recommending an elective Caesarean section and being asked whether or not they consent to that course. Namely, why do you want to do a Caesarean section, what are the alternatives, what will happen when it is done, is it safe for me, is it safe for my unborn child, how long will I take to recover and what will happen if I decide not to do it. Within this context, I am satisfied information relevant to the matter requiring decision by R in this case can be articulated as follows:

i) The reason why an elective Caesarean section is being proposed, including that it is the clinically recommended option in R’s circumstances.

ii) What the procedure for an elective Caesarean involves, including where it will be performed and by whom; its duration, the extent of the incision; the levels of discomfort during and after the procedure; the availability of, effectiveness of and risks of anaesthesia and pain relief; and the length and completeness of recovery.

iii) The benefits and risks (including the risk of complications arising out of the procedure) to R of an elective Caesarean section.

iv) The benefits and risks to R’s unborn child of an elective Caesarean section.

v) The benefits and risks to R of choosing instead to carry the baby to term followed by natural or induced labour.

vi) The benefits and risks to R’s unborn baby of carrying the baby to term followed by natural or induced labour.

At paragraph 63, MacDonald J made clear that in relation to (iv) that R’s child had no separate legal identity until born, but that:

that legal position does not prevent the impact on the unborn child of taking or not taking a decision being information relevant to the matter requiring decision. Indeed, I consider it a safe assumption that one of the foremost pieces of information a pregnant woman would consider relevant in deciding whether to undergo any medical procedure during pregnancy is that of the potential impact on her unborn child. On the evidence of Dr Jobson, in this case R has shown some preference for having a live, healthy baby, as inferred from her showing occasional interest in the baby by asking for scan photos, wanting baby clothes and speaking about going to see the baby from time to time.

As to the third question, on the evidence before him, MacDonald J identified, first that:

65. There is some difficulty in this case in establishing the extent to which the relevant information was conveyed to R.  This stems from the relative brevity of each of the documents recording the outcome of the various capacity assessments that have been undertaken on R. During the course of her oral evidence, Dr Zacharia noted, “we are not good at writing capacity verbatim” and that, especially where professionals differ, it would be very helpful to have more detail.

MacDonald J made it clear that he agreed with those sentiments, and in a passage of broader application, continued:

Given the number of capacity assessments that are required to be carried out on a daily basis in multiple arenas, it would obviously be too onerous to require a highly detailed analysis in the document in which the capacity decision is recorded. However, a careful and succinct account of the formulation of the matter to be decided and the formulation of the relevant information in respect of that matter, together with a careful and concise account of how the relevant information was conveyed and with what result, would seem to me to be the minimum that is required.

On the evidence before him MacDonald J found that:

68. […] Whilst on occasion R may be able to understand in a limited way the information conveyed to her regarding the matter on which a decision is required (as demonstrated, for example, by R being able to verbalise to Dr Jobson that a Caesarean section is cutting open her tummy to deliver the baby), she is unable to retain that information for long enough to be able to use or weigh the information and communicate a decision and, in the circumstances, is unable to make a decision about whether or not her baby should be delivered pre-term by elective Caesarean section.

As to the fourth question, the Official Solicitor had initially argued that, in identifying the impairment of the functioning of the mind or brain under s.2(1), the court must identify the underlying condition. This position was moderated in argument, but MacDonald J helpfully set out why a formal diagnosis is not required:

46. In A Local Authority v JBat [65], the Supreme Court described s.2(1) as the core determinative provision within the statutory scheme for the assessment of whether P lacks capacity. The remaining provisions of ss 2 and 3, including the specific decision making elements within the decision making process described by s.3(1), were characterised as statutory descriptions and explanations in support of the core provision in s.2(1), which requires any inability to make a decision in relation to the matter to be because of an impairment of, or a disturbance in the functioning of, the mind or brain.  Within this context, the Supreme Court noted that s.2(1) constitutes the single test for capacity, albeit that the test falls to be interpreted by applying the more detailed provisions around it in ss 2 and 3 of the Act. Again, once the matter has been formulated and the information relevant to the decision identified, the question for the court is whether P is unable to make a decision in relation to the matter and, if so, whether that inability is because ofan impairment of, or a disturbance, in the functioning of the mind or brain. 

47. Once the case is before the court, the overall assessment of capacity under the single test is a matter for the judgment of the court (see Re SB (A Patient: Capacity to Consent to Termination) [2013] EWHC 1417 (COP) at [38]).  In this context, the question of whether any inability of R to make a decision in relation to the matter in issue is because of an impairment of, or a disturbance in, the functioning of the mind or brain is a question of fact for the court to answer based on the evidence before it. In this context, the wording of s.2(1) itself does not require a formal diagnosis before the court can be satisfied that whether any inability of R to make a decision in relation to the matter in issue is because of an impairment of, or a disturbance, in the functioning of the mind or brain. The words “impairment of, or a disturbance in” are not further defined elsewhere in the Act.  In these circumstances, there is no basis for interpreting the statutory language as requiring the words “impairment of, or disturbance in” to be tied to a specific diagnosis. Indeed, it would be undesirable to do so. To introduce such a requirement would constrain the application of the Act to an undesirable degree, having regard to the complexity of the mind and brain, to the range of factors that may act to impair their functioning and, most importantly, to the intricacies of the causal nexus between a lack of ability to take a decision and the impairment in question. In PC v City of York Council McFarlane LJ (as he then was) cautioned against using s.2(1) as a means “simply to collect the mental health element” of the test for capacity and thereby risk a loss or prominence of the requirement of a causative nexus created by the words “because of” in s.2(1). Reading s.2(1) as requiring a formal diagnosis would in my judgment significantly increase that risk.

48. In the foregoing circumstances, a formal diagnosis may constitute powerful evidence informing the answer to the second cardinal element of the single test of capacity, namely whether any inability of R to make a decision in relation to the matter in issue is because of an impairment of, or a disturbance, in the functioning of the mind or brain.  However, I am satisfied that the court is not precluded from reaching a conclusion on that question in the absence of a formal diagnosis or, to address Mr Lawson’s original proposition, in the absence of the court being able to formulate precisely the underlying condition or conditions. The question for the court remains whether, on the evidence available to it, the inability to make a decision in relation to the matter is because of an impairment of, or a disturbance in the functioning of, the mind or brain.

MacDonald J accepted the evidence of the consultant psychiatrist involved that even though there had been no formal diagnosis, on the balance of probabilities, R had a learning disability, which amounted to an impairment that disabled R from being able to make a decision about whether or not her baby should be delivered pre-term by elective Caesarean section, by preventing her from retaining information long enough to use and weigh it to make a decision. He also noted the psychiatrist’s evidence that “in circumstances where is an element of dissociation due to past trauma, R may also be at times choosing not to retain the information” (paragraph 71, the word ‘choosing’ being an interesting one here).

As he had found that R lacked capacity to make the decision, MacDonald J had then to consider what course of action was in her best interests. As with considerations of capacity, and in line with previous case-law he found that the impact on R of any adverse impact on the unborn child of taking or not taking the decision was a legitimate factor to be taken into account when assessing R’s best interests (paragraph 79). On the evidence before him, and:

81. […] Given what I am satisfied is the would be the extremely traumatic experience for R of having to give birth to a dead child should the appreciable risk of the baby dying before natural or induced labour can occur become manifest, I am satisfied on balance that an elective Caesarean section is in R’s best interests.

82. I am further reinforced in my view that an elective Caesarean is in R’s best interests  by the, albeit limited, views she has expressed in respect of the same. Whilst I am satisfied that R does not have capacity to consent to an elective Caesarean section, it is relevant that she has never expressed an objection to such a procedure when it has been discussed with her. Lack of objection is not assent. However, I consider that this is nonetheless a further factor providing support for the court’s conclusion as to best interests. As does the preference R has shown, on occasion for giving birth to a live, healthy baby.

MacDonald J concluded by observing that

84. As I have had cause to observe in another urgent case of this nature that came before me in the week I dealt with this matter, for the court to authorise a planned Caesarean section is a very serious interference in a woman’s personal autonomy and Art 8 rights. As the Vice President noted in in Guys and St Thomas NHS Foundation Trust & Anor v R, Caesarean sections present particular challenges in circumstances where both the inviolability of a woman’s body and her right to take decisions relating to her unborn child are facets of her fundamental freedoms. Against, this Parliament has conferred a jurisdiction on this court to authorise medical treatment where a person lacks capacity to decide whether to undergo that medical treatment and where the medical treatment is in the person’s best interests. I am satisfied it is appropriate to exercise that jurisdiction in this case, for the reasons I have given.

A postscript to the judgment confirmed that R had undergone an elective Caesarean section in accordance with the care plan, which proceeded smoothly.  R’s baby was born in good condition and was doing well for his gestation.

Comment

I have set out the reasoning of MacDonald J in some detail in relation to the elaboration of the capacity test as it applied to R because it shows (1) both the rigour of the steps required in a complex case; and (2) the consequent transparency of the decision reached. Whether or not one agrees with the outcome, it is entirely clear what MacDonald J considered to be the matter in question, what the information was that was relevant to that decision; how he reached the conclusion that R could not retain or use and weigh the information, and how that inability was caused by an impairment or disturbance in the functioning in her mind or brain. It is therefore precisely the sort of transparent and accountable, and therefore defensible, decision that I would suggest meets the demands of the CRPD (see further in this regard this article).

One point that is brought out by the transparency of the decision is that is possible and interesting to compare MacDonald J’s list of relevant information with that set out in the Royal College of Gynaecologists and Obstetricians’ August 2022 Planned Caesarean Birth consent guidance. The latter is said to be used for women over the age of 16 with mental capacity (and people under 16 years who are Gillick competent). MacDonald J’s list was drawn up for the purposes of deciding whether or not R had capacity. There are strong similarities, but not a direct overlap. This may be a function of the fact that the guidance was not before MacDonald J (there is no reference to it in the judgment), but it would have been interesting to see whether MacDonald J considered that the requirements of the RCOG guidance meshed with his own analysis of the position. It is certainly the case that, more broadly, there may be an insufficiently recognised tension between supporting people to make decisions for purposes of the MCA (which pushes towards a minimalist approach to the relevant information), and complying with the requirements of securing informed consent for purposes of the law of negligence (which pushes towards a maximalist approach).

MacDonald J’s clear confirmation that a formal diagnosis is not required in order to reach a conclusion that a person lacks capacity to make a decision is helpfully crisp, as are his observations about the minimum requirements for recording assessments. We have updated our guidance note on assessing and recording capacity accordingly to reflect them (as well as to make a few other updates required by the passage of time since the last update).

Alex Ruck Keene KC (Hon) is a barrister at 39 Essex Chambers. This article first appeared on his Mental Capacity Law & Policy blog.

[1] Note that the standard of proof strictly applies only in the court setting. Outside the court setting, in the context of care and treatment, the question is whether there is a reasonable belief that the person lacks capacity to make the decision (s.5).

[2] Although, as the Royal Bank of Scotland case makes clear, that does not mean that the fact that the proposed decision appears unwise is irrelevant – it is a trigger to consider whether the person has capacity to make it: