Podcast: the Good
Podcast: the Good
Section 1(2) of the Mental Capacity Act 2005 explains that it is presumed in English law that an adult has capacity. The burden of proof, therefore, lies on anyone claiming a person lacks capacity. Section 2(1) of the Mental Capacity Act sets out the circumstances in which a person lacks capacity,
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
Section 3(1) explains that a person is unable to make a decision for himself if he is unable:
Having set out these key principles, this essay will consider some of the elements of this definition in greater detail.(1) The answer has set out the key principles at the start. The examiner can be sure that the candidate knows the key statutory provisions.
First, it should be noted that the definition only applies where there is a disturbance in the functioning of the mind or brain. Although that would clearly include, for example, a patient suffering dementia, it would not apply simply because the patient was in pain or had a low IQ. In S v St George’s NHT Trust the Court of Appeal was critical of any assumption that a woman in labour was automatically lacking capacity because she was in pain.(2) It good to see the candidate using an example from the case law to clarify the issue made.
Second, the test is issue specific. That means that a patient might lack the capacity to make some decisions, but not others. So a patient with a severe learning difficulty may lack the capacity to understand the information surrounding major surgery, but be able to decide what they would like for tea.(3) This is an important point to make. The candidate has done well to use a vivid hypothetical example to demonstrate that they understand the issue.
Third, professionals dealing with a patient should try and help the patient gain capacity if at all possible. Section 2(2) of the Act mentions using sign language or visual aids.(4) The candidate referred specifically to the relevant statutory provision. The examiner will be keen to see this. The point is that a patient should not be assumed to lack capacity simply because at the moment they lack sufficient understanding, if they could gain the understanding with some help.
Fourth, to have capacity a patient must be able not only to understand the information, but to weigh it and reach a decision. This can be particularly helpful in cases where a patient is suffering needle phobia or is otherwise in a panic and cannot make a decision (see e.g. Bolton Hospitals NHS Trust v O). In such a case the patient may understand the relevant issues, but not be able to use them to make a decision.(5) Again, it is good to see the candidate referring to an example from the case law to back up this point.
Fifth, a very important principle is found in section 1(4). That states that a patient must not be treated as lacking capacity merely because they make an unwise choice. It is very easy to assume that because the patient has made an unwise choice that they, therefore, lack capacity. That should be avoided. In Re C (Adult: Refusal of Treatment) a patient believed God would heal him of his gangrene and, therefore, refused to consent to the doctor’s recommendation of cutting his foot off. Thorpe J held that he understood the relevant issues and had reached his decision. Although many people would think his decision unwise that did not mean that he lacked capacity. Although that case was decided before the Mental Capacity Act, it is likely to be followed today. That case, however, should be contrasted with R(N) v Dr A, where a patient believed that the doctors were trying to make her believe he was a man. There, unlike in Re C, the belief affected her ability to understand the medical information.(6) It is helpful to contrast decided cases to highlight the difficulties mentioned. Although the cases were decided before the Act came into force, they are still helpful in revealing the issues raised.
Sixth, the patient must understand the relevant information. The Act does not make it clear what the relevant information is. In the leading case of Chatterton v Gerson it was explained that the patient had to understand ‘in broad terms the nature of the procedure which is intended’.(7) This is a good quote to remember. It is important to emphasize that little information is needed before a person has capacity to consent. That makes it clear that there is no need for the patient to know all of the detailed issues surrounding the treatment. So in Potts v NWRHA when a woman consented to a routine post-natal vaccine, but was in fact given a long-acting contraceptive, there was no difficulty in finding she did not understand the basic information about the proposed surgery.
Finally, a patient must be able to weigh up the information to make the decision. That means that if the patient is subject to undue influence (e.g. by an overbearing relative) they will lack capacity (Re T).
To conclude, the test for capacity in the Mental Capacity Act 2005 has to strike a difficult balance. On the one hand, if the test is made too hard to satisfy, many people will be treated as lacking capacity and be unable to make decisions for themselves. On the other hand, if the test is made to easy to satisfy, people will be bound by decisions when they did not really understand the issues involved. The test in the Act does well in striking the balance between these concerns.