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Home » Mental Capacity case law updates August 2023

Mental Capacity case law updates August 2023

Case law: stack of legal books

As professionals working in the field of Mental Capacity, it is important to stay up to date on the latest developments in case law. In this blog, we bring together some of the most notable recent development you should be aware of.

Testamentary capacity

The case of Baker and Anor v Hewston (2023) examined the situation where a client may have multiple Wills written both pre- and post- diagnosis of dementia. From which, it was recognised that the criteria from Banks v Goodfellow (1870) were broadly consistent with the two stage test under the MCA – with one accommodating the other. However, it was recognised that there are some areas (such as probate cases) where the MCA does not strictly apply.

Documentation of Mental Capacity Assessments

The case of North Bristol NHS Trust v R (2023) looked at consent to a medical procedure – focusing specifically on the best interests of a woman and her birth arrangements.

In judging the case, Mr Justice MacDonald raised concerns regarding the balance of details recorded within a Mental Capacity Assessment:

‘Given the number of capacity assessments that are required to be carried out on a daily basis in multiple arenas, it would obviously be too onerous to require a highly detailed analysis in the document in which the capacity decision is recorded. However, a careful and succinct account of the formulation of the matter to be decided and the formulation of the relevant information in respect of that matter, together with a careful and concise account of how the relevant information was conveyed and with what result, would seem to the court to be the minimum that is required.’

Justice MacDonald in North Bristol NHS Trust v R (paragraph 65)

As this case goes to show, good record keeping is essential, and protects both the individual and the professional completing the assessment. However, as we have noted in our blogs, poor record keeping is an extremely common error that we see time and time again in professional practice. Mr Justice MacDonald’s judgement goes to reaffirm the importance of record keeping and the need for a minimum amount of information to be recorded for any assessment.

Fluctuating capacity

In March 2023, the case of A local Authority v PG and Ors (2023), considered ‘whether to take [a] contingent or anticipatory approach to fluctuating capacity’ around the care of an individual and that individual’s contact with others.

Taking into account the ECHR and Strasbourg jurisprudence, it was determined that a ‘longitudinal view’ would be most appropriate:

‘In my view, the more practical and realistic approach is to make a declaration that PG lacks capacity in the two key respects, but also make clear that when being helped by the care workers they should so far as possible protect her autonomy and interfere to the minimum degree necessary to keep her safe’

Justice Lieven in A local Authority v PG and Ors (paragraph 44)

The focus here being to protect the autonomy of the individual in cases where they may have fluctuating capacity. In such instances, a more longitudinal view would be to work with the individual and interfere to the minimum degree necessary.

Useful resources

One of the best sources of information in this area currently is 39 Essex Chambers – a barristers’ chambers that has produced a caselaw database in this area and also provides free monthly reports covering areas of law and practice relating to the Mental Capacity Act.

If you’re not already subscribed to the 39 Essex Chambers newsletters, we highly recommend you sign-up, as it’s a great way to stay on top of case law and how it applies to Mental Capacity in practice.


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