Getting the stages of the capacity test in the right order (and where rights, will and preferences do not pull in the same direction)

In Pennine Acute Hospitals NHS Trust v TM [2021] EWCOP 8, Hayden J considered an urgent application made by the Pennine Acute Hospitals NHS Trust in respect of a male patient, TM. It was not possible to be entirely accurate about TM’s age, but he was thought to be 42, and was believed to come from Zimbabwe. The applicant Trust was seeking to perform a bilateral below-knee amputation upon TM, without which his treating clinicians believed he would develop sepsis and suffer life-threatening renal and cardiac failure very soon. TM strongly objects to the proposed surgery and treatment, and says he believed that his condition would improve without it.

In the course of his judgment Hayden J observed, as he has on previous occasions, that “[o]ne of the surprising developments following the Court’s move to video conferencing platforms during the pandemic is that it has become much easier for judges to visit the protected party.”   With the agreement of the parties, he met remotely with TM, and observed him on the ward with one of his doctors; his short meeting confirmed everything that his treating consultant understood, namely that he was not man who wished to die; rather, he was a man who had consistently maintained, and Hayden J considered genuinely to believe that he would get better without treatment.  Unfortunately, however, “that possibility is entirely irreconcilable with the medical evidence” (paragraph 25).

In relation to TM’s capacity, Hayden J emphasised that it is the ability of the person to take the decision, not the outcome of the decision which is the focus, and that “[t]his cornerstone of the court’s assessment of a person’s capacity to make a decision for him or herself remains equally applicable where the outcome of the person’s decision is an untimely and unpleasant death” (paragraph 29).  Somewhat tantalising, as he did not develop this line of reasoning more, Hayden J went on to say in the next paragraph “[h]owever, it does not follow that the outcome of a decision is wholly irrelevant to the court’s assessment of capacity where a person’s ability to understand and weigh the consequences of a decision is in contention.”

The Official Solicitor initially agreed with the Trust that KM lacked capacity to decide upon the amputation, but then contended that the Trust had failed to adduce sufficient evidence to displace the presumption.  Counsel for the Official Solicitor emphasised that:

32. […] on each occasion that TM has been asked about amputation and treatment, he has declined it. He has consistently refused the procedure. But what is significant to my mind is the fact that, equally consistently, he has been unable to acknowledge the consequences of refusing treatment. Indeed, it is plain to me that he does not take on board those consequences or understand them; he simply insists that, in fact, he will get better without further treatment. This puts TM in a fundamentally different position from a patient who, having understood that refusing treatment would very likely lead to their death, nevertheless considers this preferable to the consequences of receiving the treatment.

On the evidence before him Hayden J found that TM’s treating consultant was correct to conclude that TM lacked the ability to understand and weigh the information necessary to consent to the amputation because he genuinely and honestly believed that he would get better without medical intervention.

Of no little interest is the fact that the Official Solicitor also submitted that TM should be found to have capacity because the Trust had not demonstrated on the balance of probabilities that TM’s inability to contemplate the consequences of refusing treatment was because of an impairment or disturbance in the functioning of his mind or brain.   A number of reasons had been advanced by his treating consultant, and Hayden J considered at paragraph 37 that it was

[…] clear therefore that there are a number of identified pathologies which separately or in combination are likely to explain the disturbance or functioning in TM’s mind or brain. It might well have been possible to be more precise if TM had been able to cooperate with the MRI scan. It is a misunderstanding of section 3 MCA 2005 to read it as requiring the identification of a precise causal link when there are various, entirely viable causes. Insistence on identifying the precise pathology as necessary to establish the causal link is misconceived. Such an approach strikes me as inconsistent with the philosophy of the MCA 2005. What is clear, on the evidence, is that the Trust has established an impairment of mind or brain and that has, in light of the consequences I have identified, rebutted the presumption of capacity.

As to best interests, Hayden J noted that there “would in some circumstances be force” in the Official Solicitor’s submission that TM’s resistance had been so consistently expressed that his wishes should be respect notwithstanding his lack of capacity, and that in WA and MSP he had taken that approach.  However, Hayden J considered that in both of those cases that it was significant that in his analysis the person concerned recognised that refusal of treatment would lead to certain death.  By contrast, TM did not recognise this “[a]s I have been at pains to emphasise, the life force beats very strongly within him. TM wants to live. He has an entirely misguided belief that he will recover without any treatment. The pervasiveness of this misguided belief contracts and substantially diminishes the weight that might, in other circumstances, properly be given to consistently expressed wishes” (paragraph 39).  He also found that neither of the possible other arguments against treatment advanced by the Official Solicitor (a likely lack of support following the amputation given his social isolation and the length of time TM would need to spend in hospital following the operation) carried weight.   He agreed with Counsel for the Official Solicitor that “a bilateral amputation for a relatively young man of around forty-two, and who has enjoyed sports, is a profoundly traumatic prospect. I can understand that some individuals may not feel they have the fortitude to cope with such a disability and may choose not to. This would be their choice and the Court would respect it. I can find no cogent evidence that this reflects TM’s thinking. For the reasons I have set out above, I do not consider it does.”   Although Hayden J did not, in fact, expressly reach this conclusion, it is clear that he found that the procedure would be in TM’s best interests.


In relation to capacity, this is a good opportunity to remind people that the Code of Practice is wrong when it talks of a two stage test, starting with a diagnostic element.  Rather, the law requires, as Hayden J followed here (and the Code of Practice should in due course reflect when it is updated), an analysis starting with the question of whether the person is able to make the decision (i.e. understand, retain, use and weigh the information relevant to the decision, and to communicate that decision).  It is only if they cannot do so – having been given all practicable support – that the question arises of why they cannot do so, which then leads to the analysis of whether that inability is because of an impairment or disturbance in the functioning of the mind or brain (incapacity for purposes of the MCA 2005) or because of some other factor (potentially a situation to be considered by the High Court under its inherent jurisdiction in relation to vulnerable adults).   This decision is useful for highlighting that if there are multiple potential impairments in play, the fact that it is not possible to pinpoint exactly which one is causing the functional inability does not mean that the test for incapacity cannot be satisfied.  For further guidance as to assessing and recording capacity determinations, see further our guidance note.

In relation to the decision as to TM’s best interests this might, yet again, be thought to be in a situation which brings to life the realities of the duty under Article 12 UNCRPD to “respect the rights, will and preferences” of the individual in circumstances where they do not all pull in the same direction.  To act upon TM’s very clear preference – not to have the procedure – would have been to fail to respect both his will (to live) and his rights (including his positive right to life under Articles 2 ECHR and 10 CRPD, which would clearly have been breached had those involved simply acted upon his ‘no’ in the circumstances).

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