Capacity to consent to having capacity assessed – and why thinking about capacity in the abstract is usually so unhelpful

In response to a question posed by the excellent Zena Bolwig on LinkedIn, an interesting discussion has broken out about whether you need to have capacity to consent to having your capacity assessed, which in turn, raises the question of whether it’s a consent issue at all.

This was the subject of a very interesting recent article from Shaun O’Keeffe and Mary Donnelly (behind a paywall, but the abstract gives you a sense of what they are arguing; Mary has also now very helpfully offered to provide it on request).

Relatively briefly (I’m allegedly on holiday), I think that the question of consent to capacity assessment is a problematic question, and it is one that seems to me to be important because it should also prompt consideration of why capacity is being considered.

In general, thinking about a person’s capacity to make a decision in the abstract is a terrible idea for (at least) three reasons:

(1) It is likely to mean that it is not possible to focus in on the actual decision, and the information which is actually relevant to the decision (something that the Supreme Court has made clear in JB is vital);

(2) It runs the risk of considering the issue at a point in time divorced from the point when the person is actually needing to make the decision.   See in this context the important decision of MacDonald J in Re EE [2023] EWCOP 49 (which also touches on the linked point made immediately above):

[t]he absence of any scheduled gender affirming medical treatment necessarily means that the court would not be assessing EE’s capacity in that regard sufficiently proximate in time to the decision falls to be made. For the court to make what, in effect, would be anticipatory declarations as to EE’s capacity with respect to a broad category of medical treatment would run entirely contrary to the cardinal principles of the 2005 Act.

See also here, very recently, and interestingly also in the same context, Re K (Transgender: Puberty Blocker and Hormone Replacement Therapy) [2024] EWHC 922 (Fam)

(3) It runs the risk of having an ‘unmoored’ determination of capacity which leaves everyone at sea as to how to respond.  The classic example of this is in relation to capacity to make decisions about alcohol.  So what, I ask rather bluntly, if the person has or lacks capacity to make those decisions?  That is not interesting unless actions (or inactions) are being proposed by someone else, for instance to respond to the perceived risk that they are at in consequence of their drinking (see for further guidance, this recent article led on by Dr Nuala Kane).

That people feel the need to think about capacity in the abstract is perhaps a good thing, in the sense that it means that the message of the MCA 2005 that capacity matters has got through.  But the message of the MCA 2005 is not that capacity is the first question that needs to be asked.  Indeed, people thinking that is at the root of many, sometimes fatal, problems).

Rather, the MCA 2005 was designed to come in at a second stage in thinking.  In this regard, i is vital to remember that the MCA 2005 does not give any power to anyone to do anything (putting aside the powers that the person themselves can grant by way of LPA or of the Court of Protection).  All it does is to explain the basis upon which someone acting on powers that they already have (as to which see further here) is engaging with the individual: on the basis of their consent, or on the basis that they are unable to consent but that the steps being taken are in the person’s best interests (and comply with any other requirements such as those in Schedule A1 to the MCA 2005 concerning DoLS).

To that end, and as I bang on about endlessly in my training, it is always vital to start with why steps are being proposed (which, in the case of public bodies, is almost invariably, at some meta-level, to discharge a positive obligation under the European Convention on Human Rights, for instance to secure the person’s life or them against the risk of inhuman or degrading treatment).  The MCA 2005 then comes in at the next stage of taking action or – in some cases, not taking action.

Within that context, it should I hope be clear that capacity is only ever being considered because there is a proper basis to do so.

At that point, and with that run up, it gets very odd (in my view) to talk about whether there is a requirement to consider that the person whose capacity is being considered has the capacity to take part in the assessment.

To concretise this (and also to explain why e.g. the GMC consent guidance does not contain a requirement to consider capacity to consent to assessment of capacity), imagine a a doctor wants to carry out a medical procedure which they know will save the person’s life. They have directed themselves properly by reference to paragraph 82 of the GMC guidance and are alerted to a sign that the person may not have capacity to decide whether to undergo the procedure.  Imagine then that the doctor then decides to undertake a separate assessment as to whether or not the person has capacity to participate in the assessment of their capacity to decide on the medical procedure.  They conclude that the person has capacity to refuse to undergo that assessment.  At that point, the doctor is in an impossible dilemma.  They have reason to doubt that the person has capacity to make the decision about the medical procedure, so cannot rely upon the presumption of capacity (for a reminder, see here).  But they have also decided that they cannot carry out the assessment that they need to in order to determine whether the person does in fact have the capacity to decide whether to undergo the procedure.  What are they to do?

Conversely, imagine that the doctor concludes that the patient lacks the capacity to consent to having their capacity assessed.  In what circumstances could the doctor then decide it was not in the patient’s interests to undertake a suitably detailed consideration of the patient’s capacity to make the decision about medical treatment?

It is therefore perhaps unsurprising that this is not how matters proceed in the GMC guidance, nor should they.

In the context of the exercise of the Court of Protection’s powers to make best interests decisions, which are predicated on the person lacking capacity (despite all practicable support having been offered – please, please always remember that), Parker J identified as far back as 2013 that:

The court has to apply the statute. I do not accept that the question of whether it is in the best interests of P is a relevant consideration in deciding whether to make a declaration that PM lacks capacity.

I would suggest that the same logic applies to capacity determinations being made for other legitimate purposes under the MCA 2005 (and hence, that capacity to consent to that assessment is a non-question).

By “legitimate purposes” I mean in the context of care and treatment, for purposes of deciding whether steps to being taken under an existing power are being taken on the basis of consent or on a best interests basis under s.5.  It could also include where someone else has concluded that the person is (or is likely) to lack capacity to manage their property and financial affairs, such that an application to the Court of Protection for deputyship is going to be required to give authority to a third party.  I would also add that such purposes also include determining whether a person has or lacks capacity for DoLS purposes – and note that there is no suggestion in Schedule A1 that the capacity assessor has to assess whether the person has capacity to consent to having their capacity assessed.

So I would suggest that the question of whether a person has capacity to consent to having their capacity to make a substantive decision (or decisions) is both a non-question, and one that is likely to cause confusion.

There is a significant exception to what I have set out above.  That is where the person themselves is wanting confirmation that they have capacity to take a relevant step, for instance, getting confirmation that they have capacity to make an advance decision to refuse treatment as an insurance policy (as to which see here).  Another often thought about here is capacity to make a will (although, as the Law Commission is currently grappling with, it is currently governed by what can properly be described as a messy confusion between the common law (looking backwards) and the MCA 2005 (looking forwards if the Court of Protection is to be asked to make a statutory will).

In the case of self-directed confirmatory checks, I can see that there is potentially a case to be made that the person doing the assessment will want to check whether they think that the person has capacity to consent to the assessment (although ‘consent’ here is an odd word given that the action is coming from the individual).  But even then, the interesting and important question is actually whether the person has capacity to make the substantive decision.

None of what I have set out above is meant to suggest that people can be forced to undergo an assessment of their capacity.  They cannot.  If the assessor is finding it difficult to engage the person (nb, the problem should always been seen as lying at the door of the assessor rather than framing it as the person ‘refusing’ assessment), then they need to take steps to see whether they can find ways in which to engage them, or take stock of how to proceed and whether they have sufficient evidence to reach a conclusion in the absence of such participation.  For practical steps, see here.  And for a recent case where the Court of Protection had to grapple with the position, see here – and it is of note that the judge in that case did not get side-tracked by questions of whether or not P in that case had capacity to consent to having his capacity assessed. Neither, I would suggest, should we.

(Apologies – this ended up being not as brief as I was anticipating!).



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