Key takeaways
Beliefs about illness can impact decision-making
Courts consider personal views when evaluating mental capacity.
Capacity assessments require a holistic approach
Medical facts alone don’t determine a person’s understanding.
Clear evidence is key in complex cases
Documenting reasoning helps avoid disputes over capacity.
The relevance of a person’s ‘belief’ in their illness and prognosis when assessing capacity under the Mental Capacity Act 2005
In the recent case of Hemachandran & Thirumalesh -v- University Hospitals Birmingham NHS Foundation Trust [2024] EWCA Civ 896, the Court of Appeal considered sections 2 and 3 of the Mental Capacity Act 2005 (MCA) in more detail, and specifically the established legal approach to the relevance of a patient’s belief in their illness and prognosis when assessing their capacity to make decisions about their medical treatment.
Background
Sudiksha Thirumalesh sadly died in September 2023 at the age of 19 whilst proceedings were ongoing in relation to the Trust’s decision to place her on palliative care. She had an extremely rare mitochondrial disorder for which there was no cure.
This judgment was made by the late Roberts J, who found that Sudiksha lacked capacity to make decisions in relation to her medical treatment because of her “delusion” or inability to accept that her disease would result in death. Roberts J noted that Sudiksha did not believe that her doctors were giving her true or reliable information when they told her that she may have only days or weeks to live. In her view, Sudiksha was clinging to the hope that her doctors were wrong and as a result, was unable to weigh the alternative option of palliative care on an informed basis.
The case was listed to be heard on 23 October 2023 to consider best interests but as noted, Sudiksha sadly died prior to this hearing and so no best interest decision was ever made.
However, on 5 October 2023, Sudiksha’s parents sought permission to appeal against the declaration of incapacity and notwithstanding the fact that the application was now academic, permission to appeal was granted, heard on 2 – 3 May 2024 and allowed on 31 July 2024.
The Court of Appeal set aside the declaration of incapacity made by Roberts J (making no criticism of Roberts J’s decision but noting that the first instance decision was influenced by an established legal approach to the relevance of a patient’s belief in their illness and prognosis.
The Court of Appeal’s decision
Role of “Belief” in the functional test
The Trust argued that the requirement of belief followed from the ordinary reading of the requirement of section 3(1) MCA that a person must understand the information relevant to a decision about medical treatment. If a person does not believe relevant information that is objectively true, then the person will proceed on the basis of incorrect information and will, under section 3(1)(a) MCA be unable to make a decision for him or herself.
The Trust’s argument relied on the observations made by Munby J (as he then was) in the case of Local Authority X -v- MM [2007] EWHC 2003 (Fam), where he said
"If one does not "believe" a particular piece of information then one does not, in truth, "comprehend" or "understand" it, nor can it be said that one is able to "use" or "weigh" it.”
However, the Court of Appeal held that this was wrong and that whilst Sudiksha’s belief as to her prognosis and the likelihood of her receiving effective nucleoside treatment was relevant, it was not determinative as to whether she was able to make a decision under section 3 MCA and therefore satisfy the functional test.
Psychiatric Evidence and Clinical Evidence
The initial conclusion that Sudiksha lacked capacity turned almost entirely on Roberts J having adopted Dr Mynors-Wallis’ analysis in his first report of 26 April 2023, provided at a time when he had not seen Sudiksha. Dr Mynors-Wallis’ second report of 5 August 2023 was prepared when he had seen and assessed Sudiksha, and he revised his conclusion to give his view that she had capacity. This second report appears to have been rejected by Roberts J with no analysis of why.
The Court of Appeal in its judgment notes that Roberts J fell into error in relying on the expert’s first report and did not give sufficient reasons for disagreeing with the unanimous view of both experts by the time of the hearing, the Official Solicitor and the modified view of Dr Tunnicliffe but rejected three other grounds of appeal, including the argument that a professional diagnosis of an impairment of the mind is required before it can be said to have been established.
The Court of Appeal judgment concludes that,
"the declaration of incapacity having been set aside the presumption of capacity applied. It follows that in my judgment, this remarkable young woman had capacity to make decisions in relation to her medical treatment and therefore had her wish to “die trying to live”.”
Commentary
This case reminds us that when a person does not believe the relevant information given to them, this does not automatically mean that they lack capacity to make the decision in question. It may be relevant to whether they are able to understand the information relevant to the decision, but it is not determinative of the question of capacity.
Furthermore, that there does not need to be a professional diagnosis of an impairment of the mind to satisfy the diagnostic element of the capacity assessment under the MCA.
