Following the Court of Appeal decision in: PC & Anor -v- City of York Council (2013) EWCA Civ 478, the approach to assessing capacity has been an ongoing topic of discussion.
Section 2(1) of the Mental Capacity Act 2005 (“MCA”) provides that: ‘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 the brain’ (“the test”).
The test
The test can be broken down into three questions:
- Is the person (P) unable to make a decision?
- Is there an impairment or disturbance in the functioning of P’s mind or brain?
- Is P’s inability to make the decision because of the identified impairment or disturbance?
If the answer to all three questions is yes, P will lack capacity to make the relevant decision.
The current MCA Code of Practice takes a different approach to the ordering of these questions, as follows:
- Stage 1 – identify the impairment (ie the diagnostic test)
- Stage 2 – determine whether P is unable to make a decision (ie the functional test), due to said impairment.
What was the Court of Appeal’s approach?
The Court of Appeal’s approach in PC & Anor -v- City of York Council was in line with the MCA rather than the current MCA Code of Practice, and the court recommended that assessors should evaluate P’s ability to make a particular decision and subsequently consider whether this is a result of an impairment.
The test as set out in the MCA arguably helps protect the rights of those who live with an impairment of the mind or brain to make unwise decisions when they have capacity to do so. Determining whether there is an impairment or disturbance at stage 1 of the test, risks leading to assumptions that P lacks capacity to make such decisions merely because of an impairment of the mind or brain such as a learning disability or mental disorder.
There is a disadvantage to this approach in that carrying out the functional test first may result in unnecessary capacity assessments where an individual does not have an impairment or disturbance in the functioning of the mind or brain. This could lead to scarce resources being used unnecessarily, as well as a negative impact on P.
Having said that, this does appear to be the future of capacity assessments – the new Draft MCA Code of Practice (the public consultation closed in July 2022) reinforces the approach advocated in PC & Anor -v- City of York Council by providing that the first question to ask is whether P is able to make their own decision (with support if required), and secondly if not, whether there is an impairment or disturbance in the functioning of the mind or brain.
Additionally, the Draft MCA Code of Practice provides that the assessor should determine whether P’s inability to make the decision is because of the impairment or disturbance.
Additionally, the Court of Appeal in PC & Anor -v- City of York Council addressed the question of whether the court should use an act specific test, which would limit the scope for the court’s interference in people’s lives, or a person specific one, which would increase that scope, or whether the judge’s more fluid approach was correct. It concluded that capacity is decision-specific, and whether the relevant information relates to an act or person, depends upon the character of that decision.
What can you take away from this?
Moving forwards, our recommendation would be to adopt the MCA model which was endorsed in PC & Anor -v- City of York Council and is outlined in the new Draft MCA Code of Practice. Whichever way one approaches the capacity assessment, the inability to make a decision must always be clearly linked to the impairment or disturbance in the functioning of the mind or brain and all of the criteria must be met.
For further information, please contact:
Isobel Matthews, Hill Dickinson
isobel.matthews@hilldickinson.com
