What I should do if I think that a person cannot make the decision

  1. Here, we are talking about the situation where you consider that – even if all support you can practicably give them – the person cannot make the decision in question, i.e. they cannot understand, retain, use and weigh the information that they need to in order to be able the decision, or to communicate their decision. At that point, you need to ask the next question: is there an impairment or disturbance in the functioning of their mind or brain?
  2. In many cases, and especially if you are not medically qualified, you will be relying on clinical information about whether P has an impairment or disturbance in the functioning of the mind or brain, and, if so, what it is.   
  3. It is, though, important to make the following points: 
  • Some impairments or disturbances are sufficiently self-evident to mean that lay interpretations may be legitimate. Examples would include coma or acute confusional states in which the person is clearly thinking and behaving in a manner inconsistent with their baseline state (e.g. through delirium or intoxication with alcohol or drugs). 
  • It is not necessary for the impairment or disturbance to fit neatly into one of the diagnoses in the ICD-11 or DSM-5. The important thing is that there is a proper basis upon which to consider that there is an impairment or disturbance. For example, coma is not in the DSM-5 and many of the diagnostic subdivisions and language of DSM-5 may be less relevant to capacity assessment.
  • Finally, particular care needs to be exercised if you are considering a person who appears to have a very mild learning disability or an unusual personality– this may well not be enough, in isolation, to constitute an impairment or disturbance of the mind or brain for these purposes.[1]See WBC v Z [2016] EWCOP 4 (autism) and Kings College NHS Foundation Trust v C and V [2015] EWCOP 80 (unusual personality)

Is the person’s inability to make the decision because of the impairment or disturbance in the functioning of their mind or brain?

4. In all situations where you think that the person cannot make the decision, it is important to be able to answer the question why that is the case. This is sometimes called identifying the ‘causative nexus.’[2]PC and NC v City of York Council [2013] EWCA Civ 478 at paragraph 52. In other words, are you satisfied that the inability to make a decision is because of the impairment of the mind or brain?  Any pro forma form for the assessment of capacity that does not include a final box asking precisely this question is likely to lead you astray.

The causative nexus in the courts

In PC and NC v City of York Council not being precise about the cause of the person’s difficulties made all the difference.  The first judge who looked at the case considered that the woman, PC, lacked capacity to decide whether to resumed married life with her husband upon his release from prison because her inability to process the risks that he posed to her “significantly relate[d] to” her mild learning disability. 

The Court of Appeal said that he was wrong to reach the conclusion that the woman lacked capacity.  It made clear that the MCA requires the inability to be “because of” of the impairment, which is evidentially a more difficult test to satisfy.

5. To reiterate, there has to be, and you have to show that you are satisfied why and how there is, a causal link between the disturbance or impairment and the inability to make the decision(s) in question.  Heart of England NHS Foundation Trust v JB[3]Heart of England NHS Foundation Trust v JB [2014] EWHC 342 (COP). again, shows how easy it is to assume that merely because a person has schizophrenia, they are then unable to take decisions regarding surgical procedures – this is entirely incorrect. The disturbance or impairment in the functioning of the mind or brain must also not merely impair the person’s ability to make the decision, but render them unable to make the decision.[4]Kings College NHS Foundation Trust v C and V [2015] EWCOP 80 at paragraph 31.

To test whether you are satisfied that the ‘causative nexus’ is satisfied, you can ask one (or more) of these questions: 

  • The “plausibility” question: ask whether it is clinically plausible that the inability is caused by the impairment or disturbance? For example, if someone does not appear to retain information is this plausibly explained by a personality disorder?
  • The “subjective” question: ask “would the relevant decision be one P would have taken had they not had the impairment or disturbance”?  For example, if someone was not in a delirium, or not in a severely depressed phase of affective disorder, would they be making this decision to refuse treatment?
  • And always remember the ‘other explanation’ question: i.e. ‘is the inability better explained by a lack of practicable steps or by factors which are temporary (e.g. effect of medication, pain) which mean the decision can be delayed?’

If, after all of these steps have been taken, you consider that the person cannot make the decision because of an impairment or disturbance in the functioning of their mind or brain, you will need to consider what actions or decisions to take in their best interests. For guidance about this, see this detailed guide produced by 39 Essex Chambers.

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Footnotes

Footnotes
↑1 See WBC v Z [2016] EWCOP 4 (autism) and Kings College NHS Foundation Trust v C and V [2015] EWCOP 80 (unusual personality
↑2 PC and NC v City of York Council [2013] EWCA Civ 478 at paragraph 52.
↑3 Heart of England NHS Foundation Trust v JB [2014] EWHC 342 (COP).
↑4 Kings College NHS Foundation Trust v C and V [2015] EWCOP 80 at paragraph 31.