Judge: Baker J.
Citation:  EWHC 1704
Summary: The Court was asked to decide whether a man suffering from Huntingdon’s Disease (‘HD’) had the capacity to make decisions about his residence, care and treatment. The matter came before the Court by way of an application under s.21A MCA 2005 seeking a termination of a standard authorisation made by the local authority permitting Z Limited to keep PH at a care home. The application challenged the conclusion of the local authority (as supervising body) that PH met two of the qualifying requirements for a standard authorisation, namely the capacity requirement and the best interests requirement. PH (acting by his litigation friend, the Official Solicitor) further challenged the purposes and conditions of the standard authorisation. It was agreed that the question of capacity would be determined as a preliminary issue. A jointly-instructed consultant neuro-psychiatrist (with a particular expertise in well respected as an expert in HD) concluded that PH had the capacity to decide the question of residence. This view was accepted by the Official Solicitor and shared by P’s former partner, R, with whom he had continued to live until he was placed at the care home, and to whom PH wished to return. However, the view was contrary to the conclusions of the medical professionals treating PH, and both the local authority and Z Limited sought to challenge the conclusions of the expert.
Following a two-day hearing in which he heard evidence from the treating professionals, PH’s social worker and R, Baker J concluded that PH lacked the relevant capacity. Before assessing the evidence, Baker J set out in his judgment (at paragraph 16) a summary of the principles to be adopted by a Court assessing capacity which are of sufficiently general application to all those required to assess capacity that they merit setting out in full:
“16. When addressing questions of capacity, the Court must apply the following principles.
i) A person must be assumed to have capacity unless it is established that he lacks capacity: section 1(2). The burden of proof therefore lies on the party asserting that P does not have capacity.
ii) The standard of proof is the balance of probabilities: section 2(4).
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: section 1(3). As paragraph 4.46 of the Mental Capacity Act 2005 Code of Practice makes clear, “it is important to assess people when they are in the best state to make the decision, if possible”.
iv) A person is not to be treated as unable to make a decision merely because he makes an unwise decision: section 1(4).
v) 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 disturbance in the functioning of, the mind or brain: section 2(1). This first question is sometimes called the “diagnostic test”.
vi) For the purposes of section 2, a person is unable to make a decision for himself if he is unable to (a) to understand the information relevant to the 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: section 3(1). These four factors comprise the second question which is sometimes called the “functional test”.
vii) The Code of Practice gives guidance as to the meaning of the four factors in the functional test. Thus, so far as the first factor is concerned – understanding information about the decision to be made – paragraph 4.16 provides: “It is important not to assess someone’s understanding before they have been given relevant information about a decision. Every effort must be made to provide information in a way that is most appropriate to help the person understand”.
viii) The Code also gives guidance concerning the third of the four factors – using or weighing information as part of the decision-making process. Paragraph 4.21 provides “for someone to have capacity, they must have the ability to weigh up information and use it to arrive at a decision. Sometimes people can understand information, but an impairment or a disturbance stops them using it. In other cases, the impairment or disturbance leads to a person making a specific decision without understanding or using the information they have been given.”
ix) Further helpful guidance as to the interpretation of the functional test is given by Macur J in LBL v RYJ  EWHC 2664 (Fam). At paragraph 24 of the judgment, the learned judge said:
“I read section 3 to convey, amongst other detail, that it is envisaged that it may be necessary to use a variety of means to communicate relevant information, that it is not always necessary for a person to comprehend all peripheral detail and that it is recognised that different individuals may give different weight to different factors.”
x) Later, at paragraph 58 of the judgment, the learned judge indicated that she agreed with the interpretation of the section 3 test advanced by the expert in that case (which, coincidentally, was Dr Rickards) namely that it is “to the effect that the person under review must comprehend and weigh the salient details relevant to the decision to be made”.
xi) In Sheffield City Council v E  EWHC 2808 (Fam) (a case concerning the capacity to marry decided before the implementation of the 2005 Act) Munby J (as he then was) said (at paragraph 144):
“We must be careful not to set the test of capacity to marry too high, lest it operate as an unfair, unnecessary and indeed discriminatory bar against the mentally disabled”.
Although that observation concerned the capacity to marry, I agree with the submission made by Miss Morris on behalf of the Official Solicitor in this case that it should be applied to other questions of capacity. In other words, courts must guard against imposing too high a test of capacity to decide issues such as residence because to do so would run the risk of discriminating against persons suffering from a mental disability. In my judgement, the carefully-drafted detailed provisions of the 2005 Act and the Code of Practice are consistent with this approach.
xii) The 2005 Act generally, and the DOLS in particular, are compliant with Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms – see my earlier decision in G v E  EWHC 621 upheld by the Court of Appeal at  EWCA Civ 822 and in particular paragraphs 24-25 and 57 of the judgment of Sir Nicholas Wall P in the Court of Appeal. Just as there is no justification for imposing any threshold conditions before a best interests assessment under the DOLS can be carried out (the point taken up unsuccessfully by the appellants in G v E) so in my judgment there is no reason for adopting the approach advocated by Miss Morris on behalf of the Official Solicitor in this case, namely that a finding of a lack of capacity should only be made where the quality of the evidence in support of such a finding is “compelling”. Equally, it is unnecessary for the court to adopt an approach, also advanced by Miss Morris on behalf of the Official Solicitor, that the statutory test should be construed “narrowly”. The statutory scheme is, as I have already observed, carefully crafted. I agree with the submission made on behalf of Z Limited (in written submissions by Mr Vikram Sachdeva who did not appear at the hearing) that the question of incapacity must be construed in accordance with the statutory test – “no more and no less”.
xiii) In assessing the question of capacity, the court must consider all the relevant evidence. Clearly, the opinion of an independently-instructed expert will be likely to be of very considerable importance, but in many cases the evidence of other clinicians and professionals who have experience of treating and working with P will be just as important and in some cases more important. In assessing that evidence, the court must be aware of the difficulties which may arise as a result of the close professional relationship between the clinicians treating, and the key professionals working with, P. In Oldham MBC v GW and PW  EWHC 136 (Fam)  2 FLR 597, a case brought under Part IV of the Children Act 1989, Ryder J referred to a “child protection imperative”, meaning “the need to protect a vulnerable child” that for perfectly understandable reasons may lead to a lack of objectivity on the part of a treating clinician or other professional involved in caring for the child. Equally, in cases of vulnerable adults, there is a risk that all professionals involved with treating and helping that person – including, of course, a judge in the Court of Protection – may feel drawn towards an outcome that is more protective of the adult and thus, in certain circumstances, fail to carry out an assessment of capacity that is detached and objective. Having identified that hypothetical risk, however, I add that I have seen no evidence of any lack of objectivity on the part of the treating clinicians and social worker who gave evidence in this case.”
In concluding that he preferred the evidence of the treating medical professionals and the social worker, Baker J was “struck by the fact that [the] report [of the jointly instructed expert], and the answers to the supplementary questions posed by the other parties, seemed somewhat superficial. This may have been a reflection of the fact that he was basing his opinion on a single interview of ninety minutes. It would be an over-simplification to describe it as a snapshot but it is, to my mind, a disadvantage that the assessment was based on a single visit” (paragraph 56).
Comment: This judgment is of some considerable importance for the following reasons: