Background

CT was in his 50s. Aged 12 he developed epilepsy following a head injury. As an adult he started misusing alcohol and illicit drugs following the death of a close family member. He subsequently lost his business and home and had long periods being street homeless. He had regular hospital admissions over many years for physical and mental health problems. In addition to epilepsy, CT’s ‘significant’ physical health issues included chronic obstructive pulmonary disease, gastric ulcer, pneumothorax, chronic back pain, arthritis, osteoporosis and femoral head avascular necrosis. His ‘complex psychiatric history’ included several ‘mental impairments’ including:

• post-traumatic stress disorder;

• suspected antisocial personality disorder;

• dysexecutive syndrome – secondary to brain injury as a child;

• polysubstance use/dependency – for which he had intermittently been prescribed methadone;

• an undescribed cognitive impairment – shown by cognitive assessments including the Addenbrooke’s Cognitive Examination, the Frontal Assessment Battery and the Montreal Cognitive Assessment.

The judgment noted that these ‘impairments lead to specific care needs and affect [CT’s] decision-making in relation to physical care needs and residence’ (CT: para. 22).

CT was admitted to an acute hospital in 2023 with shortness of breath. In May 2024, he was medically fit for discharge and subject to a standard Deprivation of Liberty Safeguards (DoLS) order, which was about to expire. He wanted to leave hospital and return to being street homeless. CT had previous experience of supported accommodation and care homes and had also been street homeless for a considerable period prior to this admission. He was assessed and provided with unspecified ‘mental health support’ by liaison psychiatry from a mental health trust owing to suicidality and a wish to self-discharge against medical advice.

Owing to a disagreement between clinicians and the local authority social workers regarding his capacity to make decisions about his residence and care at discharge, the acute hospital trust made an application to the Court of Protection. The DoL assessor found that CT had capacity to make decisions for these matters. The trust disagreed and sought from the court a ‘safe discharge’ and in the interim to have ongoing authority to deprive him of his liberty. An initial court order made interim declarations under section 48 of the MCA authorising his deprivation of liberty in hospital.

In July 2024, the court made an order for CT’s discharge into a care home. The day after discharge he started a fire necessitating evacuation of residents and staff. He was returned to the acute hospital, where he was detained under s. 2 of the Mental Health Act 1983. On 25 July 2024, he was assessed as having capacity to stay as an informal patient and discharged from s.2 following a Mental Health Review Tribunal hearing. It was concluded that ‘he had capacity to make decisions relating to residence and care’ (CT: para. 12). He was soon placed under an urgent DoLS order and a further standard authorisation sought from the local authority on 5 August 2024. The DoL assessor assessed CT as ‘having capacity and therefore a standard authorisation was not granted’ (CT: para. 13). The urgent authorisation expired on 18 August 2024 and he remained as an informal patient.

A continued dispute between the acute hospital trust and local authority ensued regarding CT’s capacity, and a court hearing was arranged for 19–20 August 2024. The Court of Protection chronologically considered ten pieces of written evidence from 23 November 2023 until the time of the court hearing – six concluded that CT lacked capacity and four that he had capacity – from various sources, including consultant psychiatrists, a consultant in respiratory medicine and social workers (including a joint assessment between a social worker and consultant liaison psychiatrist). Further oral evidence was considered in court from two social workers and a consultant psychiatrist. The position of the local authority and the Official Solicitor was that CT had capacity to make decisions regarding residence and care. The contrasting position of the mental health trust providing CT with mental health support while in the acute hospital was that he lacked such capacity.

Final judgment

The final judgment was issued on 5 September 2024. The salient issues and reasoning from it are outlined in Box 1. The judge concluded that CT lacked capacity to make decisions about his residence and care and that it was in his best interests to be deprived of his liberty while the local authority searched for suitable supported living. CT was moved to a placement in December 2024, where he was residing at the time of the appeal in February 2025.

The legal framework

The judgment reviewed previous case law pertinent to this case. This reiterated key principles when assessing capacity in a summary from A Local Authority v H [2023]. The following were considered pertinent (CT: para. 27).

• ‘The determination of the question of capacity is always decision specific. All decisions, whatever their nature, fall to be evaluated within the straightforward and clear structure of ss 1 to 3 of the [MCA], which requires the court to have regard to “a matter” requiring “a decision”. There is neither need nor justification for the plain words of the state to be embellished’.

• ‘The outcome of the decision made is not relevant to the question of whether the person taking the decision has capacity for the purposes of the Mental Capacity Act 2005’, i.e. people can make unwise decisions when they are assessed as having capacity.

• ‘For a person to be found to lack capacity there must be a causal connection between being unable to make a decision by reason of one or more of the functional elements set out in s.3(1) of the Act’ [the functional test of the MCA] and the “impairment of, or a disturbance in the functioning of, the mind or brain” required by s 2(1) of the Act’ [the diagnostic test].

• ‘With respect to the functional test, the question is not whether the person’s ability to take the decision is impaired by the impairment of, or disturbance in the functioning of, the mind or brain but rather whether the person is rendered unable to make the decision by reason thereof’.

The judgment noted that the Supreme Court (A Local Authority v JB [2021]) had affirmed that assessment of capacity requires the court to address two questions:

The judgment reiterated the MCA Code of Practice (Department for Constitutional Affairs 2007: para. 4.16) in addressing understanding of information about the decision to be made, which states: ‘It is important not to assess someone’s understanding before they have been given relevant information about a decision. Every effort must be made to provide information in a way that is most appropriate to help the person to understand. Quick or inadequate explanations are not acceptable unless the situation is urgent’. It advises that relevant information includes: ‘the nature of the decision, the reason why the decision is needed, and the likely effects of deciding one way or another, or making no decision at all’.

An important Court of Appeal case (Thirumalesh Chellamal Hemachandran and another v Sudiksha Thirumalesh and another [2024]) was cited when considering whether an individual could understand or use and weigh information that he or she did not believe. That judgment held that:

The grounds of the appeal were threefold (Egan Reference Egan2025).

• The relevant information ground – the judge set too high a bar in considering the relevant information that CT needed to consider when making decisions about residence and care needs. The judge ‘erred’ in stating that CT’s mental impairments were relevant information that he needed to understand and use and weigh.

• The correct order ground – the judge appeared to start with CT’s mental impairments, deciding that they led to his inability to take decisions, rather than starting with whether he could understand/retain/use or weigh the relevant information and communicate his decision and then, only if he was unable to do so, considering whether that inability was because of his mental impairment(s). This was contrary to the Supreme Court guidance in A Local Authority v JB [2021], which emphasises that the functional test is first and the diagnostic test second.

• 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’.

Insight and capacity assessments

The judgment contained discussion of the issue of insight when assessing capacity. On the relevant information ground, the Official Solicitor’s legal team observed that ‘the way the Judge took into account CT’s mental impairment as affecting his decision making creates a circular approach and results in those who have a mental impairment to inevitably be found to lack capacity’, i.e. by ‘the inclusion of insight into his/her mental impairment on the list of relevant information’. It was further suggested that the ‘logical conclusion’ of this circular approach was that CT could not ‘weigh the impact of his mental impairment because of his mental impairment’ (CT: para. 36). It was submitted that the judge therefore ‘erred when he added the requirement for CT to have insight into the effect of his mental impairment to the list of relevant information’ (para. 38).

Submissions from Mind, the mental health charity, considered insight within capacity assessments (CT: para. 44). These considered the risks ‘in requiring those whose capacity is being assessed to be aware of and accept their mental impairment(s), or to use and weigh such knowledge and the impact of them, or to weight the lack of “foresight” as it will turn the statutory test on its head’.Footnote ^a It was clear that ‘the first focus should be on the person’s functional ability to make the decision and then determining whether such inability is because of a mental impairment, as required by ss2-3 MCA 2005 and JB’ and that ‘An insight requirement risks unduly influencing the statutory criteria’.

The submissions further observed (CT: para. 46) that ‘Insight must not be conflated with decision-making capacity. A person may lack insight but retain capacity to make various decisions’, referring to Heart of England NHS Foundation Trust v JB [2014], a case involving an individual with schizophrenia who was assessed as needing surgical amputation of her leg. The submissions sagely noted: ‘as illustrated by [JB], a necessary correlation would have to be established between a lack of insight and the person’s inability to decide the matter. And, as advised by the NICE guidelines, those assessing and determining capacity must clearly record what they mean by lack of insight and how they believe it affects or does not affect the person’s ability to make the decision as defined by the statutory criteria’ – the National Institute for Health and Care Excellence guidelines referred to here (NICE 2018) do not directly define insight.

In addressing the second ground of appeal (CT: para. 47), Mind recognised that ‘a lack of insight may be relevant to, but not determinative of, whether the person has a mental impairment for the purposes of s2 MCA 2005’. It noted ‘Equally, […] someone might lack insight for reasons other than mental impairment. For example, it could be caused by P’s educational background, language proficiency, lack of familiarity with medical issues and the lack of appropriate support’. It was contended that:

• including the person’s insight into their mental impairment as relevant information undermined the importance of proving that the person’s inability to decide is because of that mental impairment (‘the causative nexus’);

• it conflated the functional and mental impairment tests and watered down the evidential burden on capacity assessors and judges to demonstrate how and why the inability to decide is because of the mental impairment;

• in this case, the judge ultimately concluded that CT lacked capacity because he was unable to weigh the impact of his mental impairments, which was entirely circular reasoning;

• the key issue should have been whether CT was unable to decide the matter because of the mental impairment(s).

The court decision

This was ‘a difficult and complex case’ (CT: para. 48). The capacity assessments and conclusions of the professionals were divided, some being ‘finely balanced’. For issues relating to capacity, it was ‘important to keep the structure of any decision making firmly anchored in the statutory framework’ – which was emphasised in Hemachandran, in that ‘All that is required is an application of the statutory words without any gloss’.

The judgment accepted that all three grounds of the appeal were established. On the first ground (CT: para. 55), it was accepted that the judge had erred by setting the bar too high in considering the relevant information for CT, and especially that CT’s mental impairments (including insight) were relevant information that he needed to understand and use and weigh. The course taken by the judge had conflated the two-stage test (from JB) and created a circular approach that risked leading to the inevitable conclusion that those who have mental impairment lack capacity, which undermined the MCA principles and safeguards. What was required was ‘a careful delineation of the relevant information, relevant to the particular case in question, and then an assessment, in accordance with the [MCA] framework, whether the individual can understand, retain, use/weigh that relevant information and communicate the decision’. It was only if that process concluded that the individual ‘is unable to make a decision within that statutory framework that the court then has to consider whether the inability is “because of, an impairment of, or a disturbance in the functioning of, the mind or brain”’. This vital delineation was ‘not present or clear’.

In relation to the second ground (CT: para. 57), it was noted the ‘two stage test in JB is clear’ – including insight as part of his mental impairment had ‘the effect that the Judge did not conduct the functional test in accordance with the requirements of the MCA 2005’ and ‘conflated and risked blurring the two distinct tests’. The judge had not taken a structured approach of properly going through the list of identified relevant information from both written and oral evidence. The effect was that ‘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’.

On the third ground (CT: paras 58–59) it was noted that social worker assessments had concluded that CT had capacity to make decisions about his residence and care, but that the judge had not explained why later social worker assessments were not preferable or capable of being relied on. A ‘striking feature’ was the ‘evidential divide on capacity’ between clinicians and social workers. It was observed that the form used by the local authority and social workers in their capacity assessments enabled a structured approach to assessments in accordance with the statutory framework. The form:

• identified the decision;

• set out the relevant information that the person must understand, retain, use or weigh in regard to the decision;

• included what had been done to enhance the capacity of the person to maximise their ability to make the decision for themselves;

• checked the person’s ability to communicate;

• requested a summary of the options that had been discussed with the person;

• structured each stage of the requirements in s.3 MCA (understand, retain, use, weigh, communicate).

The judge praised the high standard of the reports of two social workers who had used this form and demonstrated relevant detail at each stage, with clear reasoning underpinning their conclusions. This was compared with some of the clinicians’ assessments, which were less structured in format. Because capacity assessments are time and decision specific, the judgment advised that the dates when the individual was assessed ‘should always be clearly set out and borne in mind’ (CT: para. 59).

The parties agreed that in the event of the appeal being allowed, the matter should be returned to the previous judge to ‘consider what, if any, further directions need to be made to determine the issue of capacity’ (CT: para. 61).

The involved parties had provided the court with checklists to assist those assessing capacity. The judge ‘whilst not wanting to add to the growing industry of checklists’, recognised their usefulness and presented them as a 10-point checklist (Box 2).