Key takeaways
Appeal court reinforces correct legal test
Judgment clarifies approach for assessing tribunal decisions.
Errors in reasoning can justify intervention
Courts will act where findings lack proper evidential basis.
Practitioners must apply structured analysis
Following the correct framework reduces risk of appeal.
Is P’s insight into their mental impairments relevant when considering capacity to make decisions about residence and care?
A new appeal judgment is an important reminder of the test that practitioners are required to apply when considering capacity.
An appeal before Mrs Justice Theis in respect of declarations of capacity to make decisions about residence and care - CT -v- London Borough of Lambeth & Anor [2025] EWCOP 6 (T3) (12 February 2025)
Background facts
CT is a man in his 50s who suffered a head injury at the age of 12 and has had epilepsy since then. He has significant medical conditions and complex psychiatric history.
An application was made in May 2024 by King’s College Hospital NHS Foundation Trust (the Trust) following a disagreement between the Local Authority (LA) and the clinicians regarding CT’s capacity to make decisions about his residence and care on discharge.
There remained a dispute and so a hearing was fixed for 19 – 20 August 2024. At this time CT was an informal patient at the hospital. It was his wish to be discharged as street homeless.
Following this hearing, the Judge (HHJ Berkey) declared that CT lacked capacity to make decisions about his residence and care and that it was in CT’s best interests for him to be deprived of his liberty at the hospital whilst the LA searched for a supported living placement.
Of note, the Judge held that CT lacked capacity to make decisions about his residence and care partly because CT lacked insight into his own mental health needs.
Background facts
CT is a man in his 50s who suffered a head injury at the age of 12 and has had epilepsy since then. He has significant medical conditions and complex psychiatric history.
An application was made in May 2024 by King’s College Hospital NHS Foundation Trust (the Trust) following a disagreement between the Local Authority (LA) and the clinicians regarding CT’s capacity to make decisions about his residence and care on discharge.
There remained a dispute and so a hearing was fixed for 19 – 20 August 2024. At this time CT was an informal patient at the hospital. It was his wish to be discharged as street homeless.
Following this hearing, the Judge (HHJ Berkey) declared that CT lacked capacity to make decisions about his residence and care and that it was in CT’s best interests for him to be deprived of his liberty at the hospital whilst the LA searched for a supported living placement.
Of note, the Judge held that CT lacked capacity to make decisions about his residence and care partly because CT lacked insight into his own mental health needs.
Appeal grounds
The appeal was brought by the Official Solicitor, CT’s litigation friend, on three grounds -
Relevant information ground – the Judge set too high a bar in considering the relevant information that CT needed to consider when making decisions about his residence and care needs. The Judge erred in stating that CT’s mental impairments were relevant information which he needed to understand and use and weigh
The correct order ground – the Judge appears to start with CT’s mental impairments, deciding that they lead to his inability to take decisions rather than starting with whether he can understand / retain / use or weigh the relevant information and communicate his decision and only then, if he is unable to do so, consider whether that inability is because of his mental impairment(s) - contrary to the guidance of the Supreme Court in A Local Authority -v- JB [2021] UKSC 52.
The changed facts ground – as capacity assessments are time and decision specific, the Judge erred in not fully acknowledging the change in the factual matrix at the time of the hearing
The appeal was supported by the LA.
Decision
Theis J allowed the appeal on all three grounds.
Theis J accepted the submissions of the Official Solicitor that,
"the Judge fell into error when he set the bar too high in considering the relevant information for CT on the facts of this case, in particular that CT’s mental impairments are relevant information that he needs to understand and use and weigh”.
She also found that the course taken by the Judge at first instance conflates the two-stage test set out in JB and creates a circular approach that risks leading to the inevitable conclusion that those who have a mental impairment lack capacity.
The approach in this case as to CT’s insight into his mental impairment had the effect that the Judge did not conduct the functional test in accordance with the requirements of the Mental Capacity Act 2005 (MCA) the Judge conflated and risked blurring the two distinct tests. This was caused by not taking the structured approach of going through the list of information identified as being relevant, resolving the relevant issues in the written and oral evidence and setting out the assessment of whether CT can use/weigh the information. In effect, the Judge’s conclusion on the first stage was determined by CT’s mental impairment and not by resolving the key evidential dispute in respect of the functional test.
Although not necessary for the purpose of the appeal, Theis J also accepted grounds two and three were established.
Commentary
Theis J was complimentary of the social worker’s capacity assessments and the specific structure of these forms. She noted, in comparison, some of the assessments by the clinicians were in a less structured format. This case therefore highlights the importance of ensuring capacity assessments are structured in a way which ensures the assessment is completed in accordance with the statutory framework and up to date and relevant case law. The assessments used by the social workers in this case:
identified the decision;
set out the relevant information P must understand, retain, use and weigh with regard to the decision;
documented steps that had been taken to promote P’s ability to make the decision for themselves;
confirmed P’s ability to communicate their decision;
considered the options that had been discussed with P; and
structured each stage of the assessment as required in s3 MCA 2005 (understand, retain, use, weigh, communicate), with clear reasoning for each conclusion given.
The case also reiterates the clear guidance provided in JB and that there are two issues that the court is required to address when considering capacity. First, whether the person is unable to make a decision in relation to a particular matter, and only if so, is it necessary to go to the second stage. The second stage is whether the inability is caused by an impairment of or disturbance in the functioning of P’s mind or brain.
There is a useful ‘checklist’ for practitioners assessing capacity to work through at paragraph 60 of the Judgment, which was endorsed by Theis J.
