28 April 2025
Sophie McConnell, a graduate solicitor apprentice in the clinical negligence department looks at the guidance on assessing mental capacity.
What is mental capacity?
Mental capacity is the ability to understand information and make a decision when required. The Mental Capacity Act 2005 (MCA) provides a legal framework for making decisions on behalf of adults who lack capacity to make decisions for themselves.
The recent case of CT v Lambeth LBC [2025] EWCOP 6 (T3) (12 February 2025) provided important guidance in relation to assessing mental capacity. An appeal against final declarations regarding residence and care, the Court of Protection highlighted the importance of following a structured approach when assessing capacity under the MCA.
The Claimant who was in his 50’s had a significant medical history including brain injury, epilepsy and several psychiatric conditions, requiring numerous hospital admissions. There was a disagreement between the hospital and local authority regarding whether the Claimant lacked capacity, and an application was made by King’s College Hospital NHS FT to the Court of Protection. It was ruled that the Claimant lacked capacity, and he was deprived of liberty.
The Official Solicitor appealed against this decision, arguing that the judge had taken the incorrect approach to the issue of capacity by deciding that the Claimant’s mental impairments led to his inability to make decisions.
The appeal was held, and it was found that the approach taken by the judge was flawed, as they had not properly applied the two-stage test set out in the MCA. It was concluded that this was a circular approach which risked leading to the conclusion that those who had a mental impairment also lacked capacity. The court provided a checklist to assist those in assessing capacity, particularly where the individual lacks insight into their own mental impairments.
The two-stage test should be:
How we can help
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