Medical Evidence on Capacity

The Mental Capacity Act 2005 (MCA 2005) is the primary piece of legislation that deals with the determination of mental capacity. The Court of Protection and medical experts must have regard to the MCA 2005 when considering whether a possible patient lacks capacity to administer his property and affairs, conduct litigation or otherwise.

Determining whether a person lacks capacity is a serious decision that is undertaken by the Court based on medical reports and evidence. A determination that a person lacks capacity will have a significant impact on that person’s life. A finding that they lack capacity may result in them being ordered to hand over the management of their property and affairs to a Deputy or have personal medical issues stand to be determined by the Court.

There are some cases where the issue of capacity will not be in dispute; for example, if person is so seriously injured that a determination they lack capacity will be inevitable. However, issues arise where opinions as to capacity differ or where a person has borderline or fluctuating capacity. A determination of capacity is very rarely black and white – one might retain some level of cognitive ability and functioning for certain aspects of life, whilst not being able to deal with others. The issue of capacity therefore warrants careful consideration.

Before making either an interim or final a determination on the issue of capacity, the Court of Protection will require medical evidence in support of its decision. The recent case of Loughlin v Singh makes it clear that where there are dissenting views on capacity, all the medical evidence presenting the full spectrum of issues, must be disclosed to the Judge. In that case, there was significant criticism of those involved for failing to disclose to the Court of Protection the varied opinions dealing with Mr Loughlin’s capacity.

Mr Justice Kenneth Parker stated that “the issue of capacity is of very great importance, and all involved must ensure that the Court of Protection has all the material, which, on proper reflection, is necessary for a just and accurate decision”. This case highlights the need for full and frank disclosure to the Court of Protection of all reports and expert opinions dealing with a proposed Patient’s capacity.

We are able to advise individuals and Personal Injury litigators as to how best approach an application to the Court of Protection where there are dissenting views on capacity. If you would like further advice on the issues raised, please contact Alexandra Knipe on 020 7940 4060.

*Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*