In February 2025, an important appeal case was heard before Mrs Justice Theis regarding the capacity of an individual, known as CT. The case is instructive as it includes a number of important observations, as well as a list of recommendations that we might use as a ‘checklist’ for assessments.
Identifying the salient information
In her judgement, Mrs Justice Theis draws attention to A Local Authority v H (2023) (point 51), reminding us that we must take care to identify the salient information for the specific decision being addressed, and then ensure that the threshold of capacity is not set too high, applying the balance of probabilities.
The order of assessment
The judgement also reminds us that the correct order for a mental capacity assessment is to start with the Functional step before proceeding to Diagnostic step and the Causative nexus (point 57). This was set out in JB v a Local Authority (2021) UKSC 35.
A critique of assessments and recommended ‘Checklist’
An interesting observation was drawn from the expert witness reports provided. Mrs Justice Theis stated that there is an ‘evidential divide on capacity [that] was largely between the clinicians and the social workers’ (59)
With this in mind, the judge observes that ‘future assessments will benefit from more closely following the statutory framework’, emphasising that ‘capacity assessments are time and decision specific’, and reminding us that ‘the relevant dates when the individual was assessed should always be clearly set out and borne in mind’. Drawing upon her findings, Mrs Justice Theis suggests a ‘checklist’ for those assessing capacity:
60; … (1) The first three statutory principles in s 1 MCA 2005 must be applied in a non-discriminatory manner to ensure those with mental impairments are not deprived of their equal right to make decisions where they can be supported to do so.
(2) In respect of the third principle regarding unwise decisions, particular care must be taken to avoid the protection imperative and the risk of pathologising disagreements.
(3) As set out in A Local Authority v JB [2021] UKSC 52, whether the person is able to make the decisions must first be addressed. Only if it is proven that one or more of the statutory criteria are not satisfied should the assessor them proceed to consider whether such inability is because of a mental impairment.
(4) Those assessing capacity must vigilantly ensure that the assessment is evidence-based, person-centred, criteria-focussed and non-judgmental, and not made to depend, implicitly or explicitly, upon the identification of a so-called unwise outcome.
(5) Insight is a clinical concept, whereas decision making capacity is a legal concept. Capacity assessors must be aware of the conceptual distinction and that, depending on the evidence, a person may be able to make a particular decision even if they are described as lacking insight into their general condition.
(6) In some cases, 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.
(7) When assessing and determining the legal test for mental capacity, all that is required is the application of the statutory words in ss2-3 MCA 2005 without any gloss; having ‘insight’ into mental impairment is not part of that test.
(8) Relevant information will be different in each case but will include the nature of the decisions, the reason why the decision is needed, and the likely effects of deciding one way or another, or making no decision at all.
(9) The relevant information is to be shared with the individual and the individual should be supported to understand the relevant information. The individual is not required to identify relevant information him/herself.
(10) If a lack of insight is considered to be relevant to the assessment of capacity, the assessor must clearly record what they mean by a lack of insight in this context and how they believe it affects, or does not affect, the person’s ability to make the decision as defined by the statutory criteria, for example to use/weigh relevant information.
CT v London Borough of Lambeth & Anor [2025] EWCOP 6 (T3)
Supporting capacity
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