In the Court of Appeal case of Re Sudiksha Thirulamesh (dec’d) (2024, EWCA Civ 896), the concept of a person’s belief on decision-making was brought to the forefront. For all assessors of Mental Capacity, this case is highly recommended reading.
To provide a broad overview of the case, Sudiksha Hemachandran (Sudiksha) was born with a rare disorder called Mitochondrial Depletion Syndrome (RRM2B). Medical evidence at time of the initial hearings showed that she was in multi-organ failure, nearing end of life. The initial case was brought by Birmingham NHS Foundation Trust who upheld a belief that Sudiksha lacked capacity for the decision of palliative care plan to be in place and for her life sustaining treatment to be withdrawn.
The central point of analysis and discussion that emerged from this was regarding the mental capacity assessment that took place within which:
- Sudiksha was clear that she wanted to be considered for experimental treatment in America or Canada, powerfully stating her desire to ‘die trying to live’.
- The pivotal decision of incapacity for this decision was based on Sudiksha’s ‘lack of belief in’ the information provided by her doctors on her prognosis.
Sudiksha sadly died, age 19, before the appeal case could be heard. On appeal, the presiding judges noted from evidence that the basis for Sudiksha’s rationale was recognised to be her love and trust for her family who were supporting her, placing greater reliance on those she has known her whole life than that of the medical personnel. That Dr Mynors-Wallis recognised that this could not amount to a delusion, or impairment of the mind, for it had an understandable origin.
The Trust proceeded to argue that in order to apply the Section 3 requirements of the Mental Capacity Act (2005), that understanding of the salient information arguably requires a belief in that information giving reference to an earlier case of Local Authority X v MM (2009, EWHC 2003). Of note, in reviewing the case, the judges stated that:
123. As discussed above in my judgment from paragraphs [48] to [60] above, there is no specific requirement of belief, whether subsumed into the general requirement of understanding or in the ability to use and weigh information or otherwise. In as much as this Court is influenced by any of the pre-MCA cases, in my view the proper approach is that of Butler-Sloss LJ in Re MB: an absence of belief may but not inevitably will, on the facts of a particular case, lead to a clinician or a court to conclude that the functional test in section 3(1) is not satisfied and that the person in question does not have the ability to make the decision in question.
124. All that is required is an application of the statutory words without any gloss. ‘Does this person have the ability to understand?’, ‘Is this person able to use and weigh this information?’ The danger is that the introduction of the word ‘belief’ is either the same as the statutory test, in which case it is otiose or, if that is not the case, there is the risk that by introducing a hard-edged requirement of ‘belief’ people will look for something different from the statutory test which is wrong in law. All that is required is the application of the words of the statute.
125. Unsurprisingly, both the judge and Dr Mynors-Wallis approached the case on the basis that Sudiksha’s inability to believe that she was going to die soon and that nucleoside experimental treatment was not going to help, led inexorably to the conclusion that she was unable to satisfy the functional test as she did not understand the information and was unable to weigh and use it.
126. The judge at [93] agreed with Dr Mynors Wallis that Sudiksha was ‘unable to make a decision for herself in relation to her future medical care, because she does not believe the information she has been given by her doctors, absent that belief, she cannot use or weigh that information as part of the process of making the decision’.
127. She then moved on to consider (essentially by reference to Dr Mynors-Wallis’ first report) whether Sudiksha was unable to make a decision in relation to her medical treatment because of an impairment of mind. The judge’s approach at [103] (paragraph [114] above) to belief/acceptance again fed into this critical issue: ‘her complete inability to accept the medical reality … is likely to be the result of an impairment of mind’.
128. Whilst the wording of Ground 6 is somewhat confusing, the appeal has been argued by all parties on the basis that the alleged error of law on the part of the judge was in relation to her approach to the statutory test in saying that Sudiksha’s refusal or inability to believe the ‘information’ alone resulted in her failing the functional test in section 3(1) MCA. It follows in my judgment that the appeal must succeed on this ground as, for the reasons set out above, the judge made an error of law in regarding the absence of belief as determinative of the functional test. This was an error made through no fault of her own given that she was applying the test as set out by Munby J in Re MM.’
Re Sudiksha Thirulamesh (dec’d) (2024, EWCA Civ 896)
The judges concluded that based upon the evidence, there was not a justification to displace principle #1 of the Mental Capacity Act (2005) [the presumption of capacity], or overrule Sudiksha’s autonomy, that she was fully conscious and suffering no identifiable mental illness or loss of brain function (138).
This case highlights the importance of adhering to the legal test without deviation, and that one may understand what is being said without believing it or equally holding greater personal weight to one argument over another. That this is a part of one’s individual autonomy. Therefore, if a case is predominantly weighted upon a person’s belief of outcomes caution should be taken by the assessor in determining the outcome of assessment. Due care should be taken to escalate the case to Court of Protection as appropriate, should the circumstances of the case require.