Capacity in the Court of Protection

 In Wills

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The Court has considered the correct approach to assessing capacity in two recent cases which remind practitioners that the key facts must be applied to first principles in each case.


First Principles

The court’s determination of issues as to capacity, or lack thereof, is governed by sections 1 to 3 of the Mental Capacity Act 2005 (“MCA”) The starting point remains that people are presumed to be competent to make their own decisions unless otherwise proven on a balance of probabilities (section 1(2) MCA). Further “ a person is not to be treated as unable to make a decision unless all practical steps have been take without success” and a “person is not to be treated as unable to make a decision merely because he makes an unwise decision” (ss 1(3) and (4) MCA).

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Capacity is decision specific and time specific: the question is whether a person has the capacity at the relevant time to make the relevant decision. (Masterman – Lister v Bruton & Co [2002] EWCA Civ 1889)

The assessment of capacity involves a two-stage approach as set out in section 2(1) MCA: the diagnostic test and the functional test.   A person lacks capacity if:

  1. at the material time he is suffering from “an impairment of, or a disturbance in the functioning of, the mind or brain” whether “permanent or temporary” (the diagnostic testAND
  2. the impairment or disturbance causes the person to be unable to make a decision for himself in relation to the matter (the functional test) in that he is unable—
  • to understand the information relevant to the decision,
  • to retain that information,
  • to use or weigh that information as part of the process of making the decision, or
  • to communicate his decision (whether by talking, using sign language or any other means)

The London Borough of Haringey v FG & Ors (no 1) (2011) EWHC 3932

Proceedings were brought by the London Borough of Haringey concerning the welfare of a young woman, HG.  Hedley J had to decide as a preliminary issue, before embarking on a welfare enquiry, whether HG had the capacity to:


  • decide where she should live;
  • decide where she should be educated;
  • decide the nature of her relationship with her family;
  • deal with her financial affairs and
  • decide whether to enter into a tenancy agreement

HG had suffered a permanent injury to her brain which brought her into the category of cerebral palsy. Hedley J met with HG on the first day of trial and found her to have considerable social skills. The court however heard from a clinical psychologist who asserted that the court should not “be fooled by this in terms of arriving at views about her capacity which her true level of functioning d[id] not permit”

In considering the proper approach of the court to the issue of capacity, Hedley J, returned to first principles, reminding himself of the relevant provisions of the MCA and applying it to the evidence before him. It is worth reading his judgment to see the method he used.

In Hedley J’s view “ the finding of capacity is a finding which determines whether the person has responsibility for making and living with the consequences of any decision which they chose to make.”  In applying the law to the facts of the case he found that HG did not have capacity to make any of the decisions that the court was concerned with, placing weight on the long term implications of any decision for a girl of HG’s age and position in life.

Of particular significance is what Hedley J said by way of conclusion where he noted:

I have been referred to the decision of Mr Justice Baker in PH v A Local Authority [2011] EWHC 1704 (Family).  This is a considered decision on capacity, and one that is undoubtedly helpful, particularly in relation to its analysis of the law between paragraphs 13 and 16.  I have deliberately not referred to it in this judgment, not because it is unhelpful or because I disagree with it, but because it seems to me that unless and until there is any binding authority available, courts may be safest in an approach to this case by ascertaining the facts, applying the statutory principles and reasoning a conclusion from that, and treating each case as one to be decided on its own facts.  I say that so as to avoid a multiplicity of first instance judgments being cited as a matter of course in these cases.  It may be that parties and advisors and those who have to operate this system will find the individual expressions of judges helpful, but debates in proceedings about saying the same thing in many different ways does not seem to me helpful, particularly, where, as here, no doubt increasingly so in the future, the question of capacity will be determined summarily as a preliminary issue prior to the determination of welfare which is probably, in most of these cases, what is going to be upper most in the minds of all those who engage in them.  Therefore, for the reasons I have given, I find that H lacks capacity in the areas identified, and that accordingly the question of her welfare falls to be decided by the court”.

This case provides useful guidance as to the correct approach to be taken by the court when dealing with the issue of capacity. Try not to overburden the court with the unnecessary use of authorities- it is always preferable to return to first principles!

Dunhill v Burgin [2012] EWCA Civ 397

The Claimant was a victim of a road traffic accident in which she suffered serious brain damage. When she originally brought her claim, there was no consideration of whether she was a patient within the meaning of the Civil Procedure Rules and consequently whether she had to have a litigation friend to conduct proceedings on her behalf. A straightforward claim for a modest amount of damages for personal injury was made and the claim was compromised at the door of the court in the sum of £12,500. It subsequently transpired that if properly pleaded the claim would have been worth at least £800,000 and possibly more. Those representing the Claimant realised soon after that she was incapable of managing and administering her property and affairs and so she applied to have the compromise set aside for want of approval by the court.

At first instance, the court held that the Claimant had not lacked capacity at the time the consent order was agreed and had been given a sufficiently clear explanation of the terms of the order which she understood. Silber J considered that when looking at matters historically the court was confined to examining the decisions in fact required of the Claimant rather than any potential decision which may have been required of her but which was not required of her.

The Claimant successfully appealed. Ward LJ in the Court of Appeal identified that the case raised the same broad issue as in Masterman- Lister and Bailey v Warren [2006] EWCA Civ 51 namely whether a previous compromise/order could be set aside for want of capacity.  He found that the judgments were instructive for their clarification of how that question of capacity should be decided. He noted “the issue specific nature of the test” and the “requirement to consider the question of capacity in relation to the particular transaction (its nature and complexity) in respect of which decisions as to capacity fall to be made”.  In Ward LJ’s view the cases had established that the proper question was “whether the Claimant had the necessary capacity to conduct the proceedings, or put it another way, the capacity to litigate.”

In the circumstances Ward LJ considered that Silber J had approached matters too narrowly by treating the relevant transaction as the actual compromise negotiated outside court leading to a consent order.

since the compromise is not a self- contained transaction but inseparably part and parcel of the proceedings as a whole, the question is not the narrow one of whether she had capacity to enter into that compromise but the broad one whether she had the capacity to conduct those proceedings”

Ward LJ concluded at paragraph 29 of the judgment that:

With proper advice (….) this claim would never have been advanced for the limited sums pleaded. Since capacity to conduct proceedings includes, the capacity to give proper instructions for and to approve the particulars of claim, the claimant lacked that capacity. For her to have capacity to approve a compromise she needed to know, what she was giving up and, as is conceded, she did not have the faintest idea that she was giving up a minor fortune without which her mental disabilities were likely to increase. If the litigation had been conducted properly, it would have been conducted differently. Given that scale of award and the claimant’s limited understanding of the implications arising from a claim of that size, a litigation friend should and would have been appointed for her if not when the proceedings commenced, as I believe should have been the case, then at least certainly when the compromise was under discussion. Had she been recognised to be a patient, the compromise she in fact entered into would never have been approved by the court”

Dunhill reinforces the relevance of the principles established in the pre MCA case law and is an interesting example how important it is to avoid defining capacity not only too broadly but also too narrowly.


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