The Mental Capacity Act (2005) has five core principles that establish the guiding values of the legislation that it lays out. Principle #1 is the presumption of capacity – that a person’s decision-making for a specific matter at a specific time is assumed, and that the person themselves has ‘nothing to prove’.
The Act reinforces this by requiring that a person is not to be treated as unable to make a decision unless ‘all practicable steps to help him [the person] to do so have been taken without success’.
However, this presumption of capacity can be set aside temporarily, or displaced, if there is a ‘reasonable belief’ that a person may lack capacity for the matter in question. This then enables an assessment to establish evidence.
In practice, this displacement process can be misused to ‘avoid’ assessment of capacity and subsequent responsibilities, leaving vulnerable people at risk. This may be due to a misapplication of the legislation, or simply a lack of understanding of how the Act is supposed to work.
On this matter, Alex Ruck Keene discusses the case of the Royal Bank of Scotland Plc v AB (2020) UKEAT, where the presumption of capacity was wrongful applied. Mr Justice Swift powerfully argues:
26 …The presumption of capacity is important; it ensures proper respect for personal autonomy by requiring any decision as to a lack of capacity to be based on evidence. Yet the section 1(2) presumption like any other, has logical limits. When there is good reason for cause for concern, where there is legitimate doubt as to capacity to litigate, the presumption cannot be used to avoid taking responsibility for assessing and determining capacity [our emphasis]. To do that would be to fail to respect personal autonomy in a different way. As Simler P pointed out in Jhuti, a litigant who lacks capacity is effectively unrepresented in proceedings since she is unable to take decisions on her own behalf and unable to give instructions to her lawyers. Thus, although any Tribunal should be alert to guard against attempts by litigants to use arguments about capacity improperly, if, considered objectively, there is good cause for concern that a litigant may lack litigation capacity, an assessment of capacity should be undertaken. What amounts to “good cause” will always require careful consideration [our emphasis], and it is not a conclusion to be reached lightly. For example, good cause will rarely exist simply because a Tribunal considers that a litigant is conducting litigation in a way with which it disagrees, or even considers unreasonable or vexatious. There is likely to be no correlation at all between a Tribunal’s view of what is the “common-sense” conduct of a piece of litigation and whether a litigant has capacity to conduct that litigation. Something qualitatively different is required.
Royal Bank of Scotland Plc v AB (2020) UKEAT
Alex Ruck Keene (2024) summarises this well by voicing the ‘presumption does not mean a licence not to investigate’.
Meanwhile, in another relevant case, in Barnet, Enfield and Haringey Mental Health NHS Trust v CC & Ors [2024] EWCOP 65, CC, a young person of 21 whose conditions had reached a life threatening point, was heard before Mr Justice Hayden. In which, the judge noted:
25 …It is too easy to infer incapacity by focusing on the consequences for the patient of non-compliance with treatment. In this sphere, there is always, in my judgement, a pull towards paternalism. This requires to be resisted. The force is distinctly strong and stark when, as here, considering the risk to the life of such an obviously talented young person. The MCA does not require me to determine capacity on the balance of probabilities, rather, it requires me to apply that test in evaluating whether the presumption of capacity has been displaced. This is the statutory bulwark protecting personal autonomy.
Barnet, Enfield and Haringey Mental Health NHS Trust v CC & Ors [2024] EWCOP 65
A key lesson from these cases would be that displacing the presumption of capacity requires careful consideration and justification. A presumption of capacity does not mean a ‘licence not to investigate’, as that would be to fail to respect personal autonomy but in a different way.