Mental capacity was described by Lord Donaldson in Re T (Adult: Refusal of Treatment) [1992] as the key to a person's autonomy. Where a person has capacity to make a decision we are bound by their decision; where the presumption of capacity is rebutted, then we can act or make decisions for that person in their best interests.
Section 5 of the Mental Capacity Act 2005 gives nurses general authority to act or make decisions in relation to a person's care and treatment where:
- The nurse takes reasonable steps to establish whether the person lacks capacity in relation to the matter, and
- When doing the act or making a decision, the nurse reasonably believes that the person lacks capacity and the nurse's actions are in the person's best interests.
Section 5 of the 2005 Act provides for a person lacking capacity in relation to a matter, highlighting that matters of capacity are decision or matter specific. When applying this to the care or treatment of a person, there will often be several matters to be considered and subject to a mental capacity assessment, including:
- Capacity to consent to treatment
- Capacity to make decisions about care and support
- Capacity to make decisions about future residence and
- Capacity to make decisions about contact with others.
The challenge for the assessor is whether these matters have to be viewed as individual decisions distinct and unconnected to the other matter being assessed or whether there is an interplay between these matters that can influence the outcome of a capacity assessment.
The approach to mental capacity assessments
Section 2(1) of the Mental Capacity Act 2005 provides that:
‘For the purposes of this Act, 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.’
In A local authority v JB [2021] the UK Supreme Court held that the general approach to mental capacity assessments is the same regardless of the decision. Lord Stevens, in A local authority v JB [2021] 2(1), requires two questions to be addressed:
- Can the person make a decision in relation to the matter? And
- If not, is it because of an impairment or disturbance to the functioning of the mind or brain?
Can the person make a decision in relation to the matter?
The Supreme Court held that to properly assess a person's ability to make a decision the assessor must identify the correct formulation of the matter or matters to be evaluated. The correct formulation of the matter will then inform the assessment of whether the person can make the decision themselves.
Section 3(1) of the Mental Capacity Act 2005 provides a process for determining whether the person can make the decision. A person is unable to make a decision in relation to the matter if they are unable to:
- Understand information relevant to the decision
- Retain that information
- Use or weigh that information as part of the process of making the decision or
- Communicate the decision.
Information relevant to the decision
Section 3 of the Mental Capacity Act 2005 requires that the person is provided with information relevant to the decision so that an assessor can then evaluate the person's ability to understand, retain, use and weigh that information.
Information relevant to the decision will differ from matter to matter. The specific information required to be understood, retained, used and weighed for residence decisions will differ from the information relevant to treatment matters, or use of the internet and social media. But, whatever the matter being assessed, it must include information about the reasonably foreseeable consequences of deciding one way or another or of failing to make a decision (Mental Capacity Act 2005, section 3(4)).
Salient details
The person is not required to understand all of the information relevant to the decision, only the salient details that form the threshold for the mental capacity assessment. Salient details are the essential elements of information that the person has to understand, retain, use and weigh to have capacity in relation to a matter (LBL v RYJ (2010)).
The Court of Protection set out the salient details for particular matters in their judgments and these can be used by nurses undertaking mental capacity assessments to evaluate whether the presumption of capacity can be rebutted.
Avoiding artificial silos
In Tower Hamlets LBC v PB [2020] the Court of Protection assessed the capacity of a person who was dependent on alcohol and continued to drink. In reviewing the requirements of section 2 and 3 of the Mental Capacity Act 2005 the Court held that each case, even where the matter to be assessed was the same, had to be evaluated on the specific context of the case. The Mental Capacity Act 2005 established a uniquely fact-sensitive situation. The rebuttal of the presumption of capacity could only be displaced by a cogent well-reasoned analysis that was sensitive to the particular circumstances of the case and the individual involved.
Although different matters required different information and different salient details as part of the assessment, the issue could not be confined to discrete artificial silos for each decision. The matters to be assessed had to be seen in the overall context and facts of the case. The salient details that formed the threshold for the assessment had to be adapted and formulated to take account of the facts and situational context of the case.
Practical implications
In B (Official solicitor) v A local authority [2019] the Court of Appeal held that the Court of Protection had been wrong to conclude that a 31-year-old woman with learning difficulties who was involved with a man in his 70s who had been convicted of sex offences could have capacity to make decisions about her residence when she lacked capacity to make decisions about contact with the man and engaging in sexual relations.
The Court of Appeal held that the Court of Protection had failed to take into account information relevant to the consequences of each of those decisions, which then created a situation that made the delivery of the woman's care and treatment plan impossible. The Court of Appeal concluded that the Court of Protection had failed to consider the context of the case and the practical interplay between the matters being assessed. A decision as to where the woman lived had to be influenced by her care needs and ability to engage in sexual activity. The Court of Appeal held that the Court of Protection was wrong to find that the woman had capacity to make decisions about residence when she lacked capacity in relation to contact and sexual relations because she was unable to weigh the consequences of living with a man who presented a real risk to her safety.
In B [2019] and more recently in Re CLF (Capacity: sexual; relations and contraception) [2024] the Court emphasised the need to consider the practical interplay between decisions subject to an assessment of capacity. The decisions cannot be viewed in discrete silos because they do overlap with other decisions and each decision has an impact on the other decisions under assessment. In these situations, nurses have to weigh the impact of decisions such as residence, care, treatment and contact with others and how they relate to one another so as not to create a situation of conflict that would make the implementation of a care plan or care package impossible.
The courts are clear from B [2019] that decisions about residence are contingent on decisions about care, treatment and contact with others. One decision cannot be divorced from other areas of decision making in the context of the case.
Conclusion
Although in theory a person can have capacity to make some decisions while lacking capacity to make other decisions, when applying the requirements of section 2 and 3 of the Mental Capacity Act 2005, in practice, nurse have to recognise that where more than one decision is being assessed they cannot be viewed in discrete silos. The decisions are likely to overlap and influence the assessment of capacity to make decisions about other matters, depending on the facts and context of the case.
KEY POINTS
- Assessments of capacity under sections 2 and 3 of the Mental Capacity Act 2005 are decision specific
- Information relevant to a decision and the salient details a person has to understand, retain, use and weigh when making a decision will also differ depending on the matter in question
- Where capacity is being assessed for a number of matters, the assessor must take account of the factual and situation context of the case and how these matters overlap
- A decision on capacity about one matter in the context of a particular case can impact the outcome of a capacity assessment on other overlapping matters