The Mental Capacity Act 2005 aims to promote autonomy and self-determination by setting out in its provisions the assumption that persons aged 16 or older can make decisions for themselves. That assumption is rebuttable, and it would be for a nurse with doubts about a person's capacity to make decisions to show the person cannot make the decisions through a mental capacity assessment, by applying the provisions of sections 2 and 3 of the 2005 Act and following the guidance set out in the Code of Practice (Department for Constitutional Affairs, 2007). Nurses have a duty, under section 42 of the Mental Capacity Act 2005, to have regard to the Code of Practice and its guidance.
Although the Courts generally hold the Code of Practice in high regard, several cases, including those in the Court of Appeal and Supreme Court, have taken issue with the Code's approach to the assessment, with the Courts setting out their own guidance to the approach to be taken when assessing capacity (NCC v PB & TB [2014]; A local authority v JB [2021]).
When does a person lack capacity?
Section 2(1) of the Mental Capacity Act 2005 sets out when, for the purpose of the Act, a person lacks capacity. It states 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 brain.’
Section 2(1) makes clear that capacity is both matter and time specific, and the cause of the person's inability to make a decision on that matter must be the person's impairment or disturbance to their mind or brain.
The Code of Practice's guidance on section 2(1) is set out in paragraph 4.3 where it states section 2(1) means that a person lacks capacity if:
- They have an impairment or disturbance (for example, a disability, condition or trauma) that affects the way their mind or brain works, and
- The impairment or disturbance means that they are unable to make a specific decision at the time it needs to be made.
It can be seen that the guidance set out in paragraph 4.3 of the Code does not reflect the structure of section 2(1) leading to confusion in applying the guidance by practitioners and criticism from judges.
Criticism of the Code of Practice guidance
Judicial criticism of the guidance on the meaning of section 2(1) of the 2005 Act began with Lord Justice McFarlane in the case of PC v York City Council [2013] that concerned an appeal from a woman with a learning disability who had been found to lack capacity to enter into a marriage by the Court of Protection. In allowing the appeal, Lord Justice McFarlane held that considering the impairment of the mind or brain before determining whether the person was unable to make the decision in question, as the guidance of the Code of Practice does, is the reverse of the wording of section 2(1). He further held that such an approach risks a finding of incapacity based on the mere presence of an impairment or disturbance of the mind or brain (PC v York City Council [2013]). Lord Justice McFarlane argued that focusing on collecting evidence of an impairment to the mind or brain ran the risk of softening the link between the inability to make a decision and the impairment. The wording of section 2(1) requires that the person is unable to make the decision ‘because of’ the impairment or disturbance to the mind or brain, giving rise to a strong causal link or causative nexus.
Scholarly and professional interpretation of Lord justice McFarlane's decision in the PC case has argued that the guidance on the meaning of section 2(1) set out in the code in two points in paragraph 4.3 should be reversed in practice with point 2 being applied before point 1 (Skowron, 2014; Ruck Keen et al, 2022). This leads to a revised approach to determining mental capacity that asks;
- Is the person able to make a decision? If they cannot:
- Is there an impairment or disturbance in the functioning of the person's mind or brain? If so:
- Is the person's inability to make the decision because of the identified impairment or disturbance?
The justification for the approach is to reduce the possibility of reaching a discriminatory decision on mental capacity based on the impairment of the mind or brain.
Judicial application of the PC ruling
The application of Lord Justice McFarlane's ruling in PC in cases in the Court of Protection and Supreme Court have been less concerned with a complete reversal of guidance in paragraph 4.3 of the Code of Practice and more concerned with placing the emphasis back on the causative nexus between the inability to make a decision and the impairment or disturbance to the mind or brain.
In NCC v PB & TB [2014], the Court of Protection found that a 79-year-old woman who had suffered from psychiatric illness for a long time lacked capacity to make decisions about her residence, care and her contact with her husband, and that it was lawful and proportionate to place her in a care home and to control her contact with her husband.
When considering submissions from lawyers suggesting that Lord Justice McFarlane in PC v York City Council [2013] had reversed the order in which the Code of Practice guidance should apply, Mrs Justice Parker disagreed. She held that Lord Justice McFarlane had not laid down a different test, nor did he take the questions in reverse order. What he had done was to stress the need for a causative nexus between the inability to make a decision and impairment (NCC v PB & TB [2014] at para 89).
In applying Mrs Justice Parker's judgment in practice, the current guidance in point 2 of paragraph 4.3 of the code that says:
- The impairment or disturbance means that they are unable to make a specific decision at the time it needs to be made.
Should now be read by nurses as:
- They are unable to make a specific decision at the time it needs to be made because of the impairment or disturbance to the mind or brain.
Emphasising the importance of the causative nexus.
Supreme Court guidance on the correct approach to determining mental capacity
That more measured interpretation by Mrs Justice Parker of Lord Justice McFarlane's judgment in PC v York City Council [2013] appears to be shared by the UK Supreme Court in A local authority v JB [2021].
The case concerned the capacity of a man to have sexual relations, but the Supreme Court also used the case to give guidance on the approach to determining capacity under sections 2 and 3 of the Mental Capacity Act 2005.
The Supreme Court held that the test of capacity set out in section 2 and section 3, together with the principles in section 1, applied to all decisions, whatever their character. The core determinative provision for assessing capacity was section 2(1). The remaining provisions of section 2 and section 3 supported that provision; they did not establish additional, freestanding tests of capacity. Section 2(1) required the court to address two questions. The first was whether the person was unable to make a decision for himself in relation to the matter under consideration. If the person was unable to make a decision, the second question under section 2(1) was whether that inability was because of an impairment of the mind or brain.
There is no suggestion that identification of the impairment should wait until it was established that the person could not make the decision. Rather, in line with Mrs Justice Parker's view in NCC and in keeping with the requirements of section 2(1) of the 2005 Act, the Supreme Court's emphasis is on the causative nexus and the link between the inability to make a decision on the matter in question and the impairment or disturbance to the mind or brain.
Conclusion
The guidance issued by the Supreme Court of the approach to determining mental capacity rejects the interpretation of Lord Justice McFarlane's ruling in PC v York City Council [2013] that calls for a complete reversal of the guidance set out in 4.3 of the Code of Practice, in favour of a refocused emphasis on the wording of section 2(1) of the Mental Capacity Act 2005 that says a person lacks capacity in relation to a matter if at the material time they cannot make a decision because of an impairment or disturbance to the mind or brain. It is the causative nexus that is crucial to the determination of mental capacity and as the Supreme Court held in A local authority v JB [2021], nurses must address two questions when determining mental capacity:
- Is the person unable to make the decision?
- If unable, then is this because of the impairment or disturbance to the functioning of the mind or brain?
KEY POINTS
- Judicial guidance on the approach to determining mental capacity does not suggest a reversal of the guidance set out in paragraph 4.3 of the Code of Practice for the Mental Capacity Act 2005
- The Supreme Court in its guidance on determining mental capacity puts the emphasis on the need to establish a link, a causative nexus between the inability to make a decision and the impairment or disturbance to the mind or brain
- The approach to determining mental capacity recommended by the Supreme Court is to first consider whether the person is unable to make a decision on the matter in question and if they cannot, is this because of an impairment or disturbance to the functioning of the mind or brain?