Given the centrality of the concept of mental capacity to the Terminally Ill Adults (End of Life) Bill, it is, I have to confess, troubling that there still seem to be so many myths out there about the concept, and how it applies. I recorded this explainer in the aftermath of the Bill Committee scrutinising the Bill, discussing the following 5 myths:
Myth 1: Mental capacity is an invalid concept
Myth 2: Mental capacity is well-understood
Myth 3: Mental capacity is always difficult
Myth 4: A capacitous request holds the same weight as a capacitous refusal
Myth 5: Mental capacity is enough
I am recuperating from my own recent and unplanned journey into incapacity (a hospital bed was an interesting place to watch part of the report stage from), so I’m afraid that I have not had the chance to re-record an updated version. I do, though, want also to add to the list of myths set out above that it is very important not to conflate mental illness / mental ill health with a lack of capacity. This recent case shows what happens (in a different context) both how this is wrong in law, and the consequences: Aina Khan Law Ltd v The Legal Ombudsman [2025] EWHC 1319 (Admin): see paragraphs 68:
68. […] the recent case of Meric v Navis [2025] EWHC 759 (KB), Bright J noted (at §96): “…the mere fact that [a person] holds delusional beliefs is not sufficient for him to demonstrate a lack of mental capacity under MCA 2005… What matters is whether, because of this, he is unable to make decisions within ss.2 and 3 of the MCA 2005”.
74. […] I consider that the Decision did conflate indications of mental health conditions with indications of a lack of capacity, or at best failed to keep the critical distinction between those concepts in mind. §1.14 of the Decision specifically recorded that “it was clear from the outset that (as I have outlined in §1.3) [the IP] was suffering from mental health issues from the first meeting on [8] September 2020…”. But the mere fact that the IP had “mental health issues” begs an important question. In my Judgment the Defendant needed to address and explain, at minimum, whether those “issues” had consequences such as to require a reasonable solicitor to have doubts about the potential client’s capacity, and if so why.
Getting the approach to decision-making capacity right under the Bill is crucial, as a matter of the legal framing. It is crucial that approach is underpinned by a correct understanding of what the Mental Capacity Act 2005 says (and does not say) about decision-making capacity. It is also crucial, I would suggest, that misunderstandings about mental capacity in the context of the Bill do not ‘blow back’ to affect understandings about mental capacity in the very, very many situations each day in which it has to be considered.
Disclaimer: for the avoidance of any doubt, any views I have set out on this page, are mine alone, and do not represent the views of organisations I am affiliated with or working with an ongoing basis.
