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Judge: Swift J
Citation: [2020] UKEAT 0266_18_2702
The correct application of the presumption of capacity in s.1(2) MCA is a perennially difficult question. On the one hand, we have the situation of rushing too quickly to question capacity – often in the context of a decision that does not ‘suit’ the concerns of professionals. On the other, we have the problem identified by the House of Lords Select Committee in its post-legislative scrutiny of the MCA 2005 in 2014:
The presumption of capacity, in particular, is widely misunderstood by those involved in care. It is sometimes used to support non-intervention or poor care, leaving vulnerable adults exposed to risk of harm. In some cases this is because professionals struggle to understand how to apply the principle in practice. In other cases, the evidence suggests the principle has been deliberately misappropriated to avoid taking responsibility for a vulnerable adult. (para 105)
In this context, the decision of the Employment Appeal Tribunal (Swift J) in Royal Bank Of Scotland Plc v AB [2020] UKEAT 0266_18_2702 is a very useful contribution to the debate. The facts of the case are not relevant, save that they concerned a challenge to an Employment Tribunal’s decision not to conclude that an assessment of the applicant’s capacity to litigate was wrong. As Swift J held:
Paragraph 26, in particular, is hugely helpful in terms of finding its way through the presumption problem, not just in terms of litigation capacity but also more broadly.
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