Senior Court of Protection judge approves adapted checklist for assessing capacity after case highlights different approaches between social workers and clinicians

The Vice President of the Court of Protection has allowed an appeal against final declarations regarding the residence and care of a vulnerable man, observing an “evidential divide” on capacity between the clinicians and social workers.

In CT v London Borough of Lambeth & Anor [2025] EWCOP 6 (T3) (12 February 2025), Mrs Justice Theis produced an adapted checklist to assist those assessing capacity, and accepted the submissions on all three grounds of appeal.

The case concerned a man, CT. He suffered a head injury as a child and has had epilepsy since then. Following the death of a family member, CT started drinking and using drugs and lost his home. He has had long periods of time being street homeless followed by regular admissions to hospital to treat and manage his physical and mental health needs.

The present appeal was brought by CT's litigation friend, from the order of His Honour Judge Beckley, in which he made final declarations that CT lacks capacity to (a) conduct proceedings; (b) make decisions about residence; (c) make decisions about his care needs.

The appeal was limited to the declarations regarding residence and care, and was supported by the local authority.

An application had been made to the Court of Protection last year by a foundation trust following a disagreement between the clinicians and the local authority social workers regarding CT's capacity to make decisions about his residence and care on discharge.

Mrs Justice Theis noted: “At that stage CT was in hospital and was subject to a standard authorisation which was about to expire. CT was medically fit for discharge.”

While in hospital, CT received mental health support through a different Trust.

The local authority DoL assessor found CT had capacity to make decisions about his care and residence. The trust disagreed.

The initial order made interim declarations under s48 Mental Capacity Act 2005 (MCA 2005) and authorised CT's deprivation of liberty at the hospital.

In July 2024, the judge made an order providing for the discharge of CT from hospital to a care home. However, the following day CT was taken back to hospital. Following assessment under the Mental Health Act 1983 he was detained.

CT was subsequently assessed as having capacity to stay on the ward as an informal patient and it was concluded he had capacity to make decisions relating to residence and care.

Following discharge under the MHA 1983, the hospital put an urgent authorisation in place and applied to the local authority for a standard authorisation.

The DoL assessor from the local authority assessed CT as having capacity and therefore a standard authorisation was not granted. The urgent authorisation expired.

As there remained a dispute regarding CT's capacity between the Trust and the local authority, a hearing was fixed.

His Honour Judge Beckley handed down his judgment in which he concluded CT lacked capacity to make decisions about his residence and care and made an order that it was in CT's best interests for him to be deprived of his liberty at the hospital whilst the local authority searched for a supported living placement.

These directions were disputed on the following grounds:

• The relevant information ground: the Judge set too high a bar in considering the relevant information that CT needed to consider when making decisions about his residence and care needs.
• The correct order ground: the Judge appeared to start with CT's mental impairments, deciding that they lead to his inability to take decisions rather than starting with whether he can understand/retain/use or weigh/communicate the relevant information and only if he is unable to do so to consider whether that inability is because of his mental impairment(s) contrary to the guidance of the Supreme Court in A Local Authority v JB [2021] UKSC 52.
• The changed facts ground: as capacity assessments are time and decision specific, the Judge erred in not fully acknowledging the change in the factual matrix at the time of the hearing.

Allowing the first ground, Theis J said: “I accept the submissions of the Official Solicitor that the Judge fell into error when he set the bar too high in considering the relevant information for CT on the facts of this case, in particular that CT's mental impairments are relevant information that he needs to understand and use and weigh.

“The course taken by the Judge conflates the two stage test set out in JB and creates a circular approach that risks leading to the inevitable conclusion that those who have a mental impairment lack capacity. Such an approach undermines the principles and safeguards in the MCA 2005.”

She also accepted that grounds two and three were established.

Theis J observed: “It is a striking feature of this case that the evidential divide on capacity was largely between the clinicians and the social workers. The form used by the local authority in their capacity assessment promoted a structured approach to the assessment in accordance with the statutory framework. It identifies the decision, sets out the relevant information the person must understand, retain, use or weigh in regard to the decision, includes what has been done to enhance the capacity of the person to maximise their ability to make the decision for themselves, and then cross checks the person's ability to communicate. It then requests a summary of the options that have been discussed with the person. The form then structures each stage of the requirements in s3 MCA 2005 (understand, retain, use, weigh, communicate).”

The judge said that in terms of structure the capacity assessment of the allocated social worker was “an excellent example of providing both relevant detail at each stage, with clear reasoning to underpin conclusions”.

This high standard was replicated in the management scrutiny of that assessment by the interim Team Manager, she added.

The Vice President continued: “In comparison some of the assessments by the clinicians were in a less structured format. I recognise this may have been due to the particular circumstances at the time, but future assessments will benefit from more closely following the statutory framework in the way Dr M detailed in her witness statement in May 2024. As capacity assessments are time and decision specific, the relevant dates when the individual was assessed should always be clearly set out and borne in mind.”

Mrs Justice Theis set out a checklist – adapted from ones provided by counsel in the case, Anna Bicarregui of 39 Essex Chambers and Hilton Harrop-Griffiths of Field Court Chambers – to assist those assessing capacity:

(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.

The case was remitted for rehearing in front of HHJ Beckley for him to consider what, if any, further directions need to be made to determine the issue of capacity.

Lottie Winson