Jessica Jarvis

In North Bristol NHS Trust v R [2023] EWCOP 5 the Court of Protection (COP) confirmed that, when applying the capacity test in section 2(1) of the Mental Capacity Act 2005, it was not necessary to trace the disturbance of or impairment in the mind or brain to a particular diagnosis.

An NHS trust asked the Court of Protection to consider whether P lacked capacity to decide whether or not her unborn baby should be delivered pre-term by elective Caesarian section. The COP (Macdonald J), applied the principles set out by the Supreme Court in A Local Authority v JB [2022] AC 1322. These required the court to first identify the exact matter according to section 2(1) of the Mental Capacity Act 2005 (MCA 2005) on which P might be unable to make a decision. It was then required, on the facts, according to section 3(1) of the MCA 2005, to identify the information that would have to be understood, retained, used or weighed up in order to make that decision. Following this, the court had to consider whether P was unable to make a decision in relation to the identified matter and, if so, whether the inability was because of an impairment of or disturbance in the functioning of the mind or brain.

In P’s particular circumstances, although it was clear that she had a disturbance in the functioning of the mind or brain, it was not possible to arrive at a formal diagnosis.

Macdonald J held that section 2(1) of the MCA 2005 did not require the impairment or disturbance to be tied to a specific diagnosis, although a formal diagnosis might help a court to decide ok the issue of capacity.

According to Macdonald J, even though a formal diagnosis may aid in determining whether any incapacity was caused by an impairment of or disruption of brain or mind function, section 2( 1) of the MCA 2005 does not require the impairment or disturbance to be associated with a specific diagnosis.

MacDonald J’s explicit confirmation that a formal diagnosis is not necessary to determine that someone lacks the capacity to make decisions and his observations about the minimal standards for recording assessments are delightfully clear.