Who lacks capacity (sections 2 and 3)Mental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewLack of capacityDeputies:who may beMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewLack of capacityDeputies:who may beMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewLack of capacityDeputies:who may beMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewLack of capacity:issue specific approachLack of capacityDeputies:who may beMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewLack of capacityDeputies:who may beMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewLack of capacity:status approachLack of capacityDeputies:who may beMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewLack of capacity:correct testLack of capacityDeputies:who may be(reproduced in full in appendix A)Mental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewLack of capacityIncapacity testDeputies:who may beMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewLack of capacityIncapacity testDeputies:who may beMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewLack of capacityIncapacity testDeputies:who may beUnable to make a decision:meaningMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewLack of capacityIncapacity test:unable to make a decisionIncapacity testDeputies:who may beUnable to make a decision:meaningMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewLack of capacityIncapacity test:unable to make a decisionIncapacity testDeputies:who may beUnable to make a decision:meaningMental 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transactionsLack of capacity:relevant informationLack of capacityDeputies:who may beMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewLack of capacity:relevant informationLack of capacity:issue specific approachLack of capacityDeputies:who may beMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewLack of capacity:capacity to understand relevant informationLack of capacityDeputies:who may beMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewLack of capacity:capacity to understand relevant informationLack of capacityDeputies:who may beMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewLack of capacity:capacity to retain relevant informationLack of capacityDeputies:who may beMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewLack of capacity:capacity to weigh relevant informationLack of capacityDeputies:who may beMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewLack of capacity:capacity to weigh relevant informationLack of capacityDeputies:who may beMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewLack of capacity:capacity to weigh relevant informationLack of capacityDeputies:who may beMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewLack of capacity:capacity to weigh relevant information:phobia of needlesLack of capacity:capacity to weigh relevant informationLack of capacityDeputies:who may beMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewLack of capacity:capacity to weigh relevant informationLack of capacityDeputies:who may beMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewLack of capacity:capacity to weigh relevant 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(2007):paras 4.23–4.25
3.33The purpose of the MCA 2005 is to provide a structure and appropriate mechanisms for making a decision on behalf of a fellow citizen who lacks capacity to make their own decision.
3.34The first consideration therefore is, ‘does this person lack capacity?’ Does this person lack or now lack the capacity necessary to exercise a citizen’s usual constitutional right to make their own decision? Does a decision now need to be made for them, in their best interests?
3.35This is a matter of constitutional importance for a second reason. Those capable of acting are responsible for their actions and omissions and, being responsible for them, accountable to others. The counterpart of freedom and autonomy is accountability for acts freely and autonomously done.
3.36The law takes what some people call an ‘issue specific’ or ‘functional’ approach to capacity. It assesses a person’s ability to make a particular decision at a particular time, not their ability to make decisions generally.
3.37As has been seen, everyone is assumed to have capacity to make the decision(s) in question unless and until it is established that they lack this capacity, which must be established on the balance of probabilities. Furthermore, a person is not to be treated as lacking capacity to make the decision in question unless all practicable steps to help them to do so have been taken without success.
3.38A person does not lack capacity simply because they have a mental disorder or disability (sometimes described as a ‘status approach’ to capacity). Nor are they to be treated as lacking capacity to make the decision(s) in question merely because they propose making a decision which others consider to be unwise (sometimes called an ‘outcome approach’).
3.39Furthermore, a lack of capacity cannot be established merely by reference to their age or appearance, a condition of theirs such as mental illness or a learning disability, or an aspect of their behaviour, which might lead others to make unjustified assumptions about their capacity.
1MCA 2005 s2(3). One needs to be especially careful in the case of those who may merely be stubborn or eccentric. The correct test of capacity must be applied and lack of capacity be established.
2See Court of Protection Practice 2016, Ashton et al, Jordans, at p110 et seq.The incapacity test
3.40For the purposes of the 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’.
3It does not matter whether the impairment or disturbance is permanent or temporary.3.41Accordingly, capacity is both:
•time-specific, focusing on the particular time when a decision has to be made – so the loss of capacity can be temporary, partial or fluctuating, and
•decision- or issue-specific, concentrating on the particular matter to which the decision relates, rather than the ability to make decisions generally – so, someone may lack capacity in relation to one particular matter but not another.
3.42The fact that a temporary impairment or disturbance of the mind or brain suffices brings within the Act those who are unable to make a decision because of the effects of alcohol or drugs. This is particularly relevant for A&E staff.
What is meant by ‘unable to make a decision’?
3.43This is the ‘section 3 test’. For these purposes, a person is unable to make a decision for themselves if they are unable:
•to understand the information relevant to the decision;
•to retain that information;
•to use or weigh that information as part of the process of making the decision; or
•to communicate their decision (whether by talking, using sign language or any other means).
3.44It can be seen that being ‘unable to decide’ does not literally mean that. Demonstrating incapacity involves establishing that the person’s capacity to make the decision in question is in some way fundamentally compromised by the fact that the functioning of their mind or brain is impaired or disturbed. In other words, because of an impairment or disturbance of their mind or brain they are unable to understand, retain or weigh the information relevant to the decision, or are unable to communicate their decision. A link must be demonstrated.
3.45The test is not purely about cognition or capacity to reason. A person may understand the relevant information, be able to retain it, and intellectually able to acknowledge its significance, but be unable to give it weight because of an overwhelming phobia, obsessive thoughts, compulsive behaviour, abnormally impulsive behaviour or some other impairment or disturbance. It is therefore going too far to say that the quality of the decision is irrelevant as long as the person ‘understands’ what he or she is deciding.
4As Ashton noted in the 2014 edition of the Court of Protection Practice, Jordans (at page 995), ‘in Mitchell v Alasia [2005] EWHC 11 (QB), Cox J relied on qualities such as impulsiveness and volatility when deciding that the claimant was incapable of managing and administering his own affairs’. Similarly, in NHS Trust v Ms T [2004] EWHC 1279 (Fam), (2005) 8 CCLR 38, although there was no problem in respect of Ms T’s intellectual capacity, and she was able to acknowledge intellectually that her belief was delusional, her wishes were driven by a delusional belief that any transfusion would only add to the evil circulating within her system.How much information is relevant information
3.46How much information is relevant – the level and amount of information which the person must be capable of understanding, retaining and weighing in order to have capacity to make the decision – turns on the significance and complexity of the decision in question.
3.47The MCA 2005 states that: ‘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’ (section 3(4)). This therefore is relevant information that needs to be understood, retained, used and weighed in order to have capacity to make the decision.
3.48Some decisions are relatively insignificant and involve understanding and weighing very little information; other decisions are more complicated or have foreseeable consequences that are more significant.
3.49Regardless of whether a person has capacity, the aim of all explanations is to simplify matters as far as possible but no further. Once the information relevant to a decision has been communicated in as understandable a way as possible – by breaking it down and using plain language and aids, but without resorting to omitting information which is relevant if more difficult to understand and weigh – one is still left with a spectrum of decisions ranging from those which are simple and require understanding relatively little to those that require understanding and weighing more.
3.50In the case of a simple and trivial gift, such as giving a small present to a friend, there is not much to it and very little to grasp in order to make a valid gift. By definition, more significant transactions – those where the reasonably foreseeable consequences are more significant for the person concerned – require the capacity to understand and weigh the more significant consequences. Thus, in the old case of
Re Beaney,
5Re Beaney [1978] 1 WLR 770, [1978] 2 All ER 595. where the person was giving her house and only main asset to one of three children at the end of her life instead of by will, and the significance was to disinherit the other two children, the degree of understanding required was as high as that required for a will: the donor had to understand the claims of all potential donees and the extent of the property being disposed of. Unless she understood that, she would be entirely failing to grasp the significance, the essence, of the transaction.
3.51It follows from the fact that capacity is issue-specific, and partly depends on the nature or complexity of the decisions to be made, that a person may have capacity to make some decisions for themselves (eg capacity to marry) but lack capacity to do other things (eg to make a will). A person may have capacity to bring or defend a small, relatively trivial claim in court, where the nature of the dispute and the issues are simple to understand and weigh, but lack capacity to litigate a case where the nature of the dispute or the issues are more significant or complex. Likewise, they may have capacity to consent to a simple medical procedure but not something much more significant.
Capacity to understand the relevant information
3.52The first of the four parts of the section 3 test concerns the person’s capacity ‘to understand’ the relevant information.
3.53The Act says that a person is not to be regarded as being unable to understand the information relevant to a decision if they are able to understand an explanation of it given to them in a way that is appropriate to their circumstances (using simple language, visual aids or any other means).
6MCA 2005 s3(2). A relatively common example of a person being unable to understand the information relevant to a medical treatment decision would be an inability to understand the meaning of even common words, as a result of a very profound brain injury, learning disability or dementia.
Capacity to retain the relevant information
3.54The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent them from being regarded as able to make the decision.
7MCA 2005 s3(3). However, by definition, before one can weigh relevant information one must be able to retain it long enough to do so. As an example, even a clear and simple explanation of the information relevant to a treatment decision involves communicating what is wrong (the diagnosis), what is proposed (the treatment), the likely outcome with and without treatment (the prognosis) and any significant treatment risks (adverse effects). If a person understands the diagnosis but has forgotten it by the time the proposed treatment is being explained, they are unable to retain all of the relevant information for long enough to enable them to weigh it and make a decision.
Capacity to weigh the relevant information
3.55This is the ground which has proved to be the most difficult and controversial in practice.
3.56Even though a person can understand and retain all of the information relevant to a decision, and can communicate their preferred decision, they will still be held to be unable to make the decision if they cannot ‘use or weigh’ the information as part of the process of making the decision.
3.57A simple example is that of a person who because of mental illness believes that their consultant psychiatrist is an imposter. The individual can understand and retain the relevant information given to them by the psychiatrist about their diagnosis, the proposed treatment, and so forth. They can also communicate the decision they intend to make. However, because they do not believe the doctor is a doctor, and give no weight at all to what the person says, they cannot ‘use or weigh’ the information as part of the process of making the decision. Therefore, they will be held to lack capacity to make the decision, on the weighing ground.
3.58In the old case of
Re MB (Caesarean section),
8[1997] EWCA Civ 3093, [1997] 2 FLR 426. MB consented to a Caesarean operation but then refused to be given anaesthesia by injection because she had a phobia of needles. When MB went into labour, the hospital obtained a declaration that it would be lawful to perform any necessary Caesarean upon her because she was incapable of consenting to or refusing treatment.
3.59In that kind of case, the individual can understand and retain the relevant information about the proposed treatment and the foreseeable consequences of deciding one way or the other, repeat it back word for word and communicate their decision to refuse. That is not the issue. However, as in MB, it may be held that she is unable to use or weigh this information as part of the process of making the decision because her mind is disturbed by a terror of needles. She is petrified. This is so overwhelming as to prevent her from being able to use or weigh the relevant information about the foreseeable consequences of declining the intervention.
3.60All cases are, of course, fact-specific. The important point is that the weight a person gives to relevant information, and their ability to use it when making the decision, are legally important considerations.
3.61Some say that as soon as you refuse or discontinue treatment against medical advice you risk being found to lack capacity because it will be said that you have not understood or used the medical information properly, or have given it insufficient weight. That may happen in practice to a degree but it is not a correct statement of the law. It has to be demonstrated that the person is
unable to use or weigh the information given to them and that this inability is
because of an impairment or disturbance of the mind or brain. A link must be established.
9This point was emphasised strongly in Kings College NHS Foundation Trust v C and V [2015] EWCOP 80, [2016] COPLR 50, in which the judge also reviewed and summarised the case-law on the determination of capacity since the Act came into force.3.62What is true when it comes to serious medical treatment decisions is that the more autonomy the law sanctions the more deaths there will be. Freedom to make ‘unwise’ decisions comes at a price in terms of safety, and safety bears a price in terms of freedom. It is not possible to have it both ways.
3.63It is important to be aware of any temptation to overcome this uncomfortable truth by a misuse of the intellect or evidence. One must not give in to ‘the self-interested lie’ and construct a contrived incapacity argument in order to release oneself from an almost unbearable burden.
Capacity to communicate one’s decision
3.64This applies to people who are unconscious or in a coma and those with the rare condition sometimes known as ‘locked-in syndrome’, who are conscious but cannot speak or move at all. If a person cannot communicate their decision in any way, the MCA 2005 says they should be treated as if they are unable to make that decision. However, before deciding that this is so, it is necessary to take all practicable steps to help them communicate; for example, one might involve speech and language therapists, specialists in non-verbal communication and other appropriate professionals. Communication by simple muscle movements can show that somebody may have capacity to make a decision.
10See Code of Practice paras 4.23–4.25: www.justice.gov.uk/downloads/protecting-the-vulnerable/mca/mca-code-practice-0509.pdf.