The correct application of the presumption of capacity in s.1(2) MCA is a perennially difficult question. On the one hand, we have the situation of rushing too quickly to question capacity – often in the context of a decision that does not ‘suit’ the concerns of professionals. On the other, we have the problem identified by the House of Lords Select Committee in its post-legislative scrutiny of the MCA 2005 in 2014:
The presumption of capacity, in particular, is widely misunderstood by those involved in care. It is sometimes used to support non-intervention or poor care, leaving vulnerable adults exposed to risk of harm. In some cases this is because professionals struggle to understand how to apply the principle in practice. In other cases, the evidence suggests the principle has been deliberately misappropriated to avoid taking responsibility for a vulnerable adult. (para 105)
In this context, the decision of the Employment Appeal Tribunal (Swift J) on 27 February in Royal Bank Of Scotland Plc v AB  UKEAT 0266_18_2702 is a very useful contribution to the debate. The facts of the case are not relevant, save that they concerned a challenge to an Employment Tribunal’s decision not to conclude that an assessment of the applicant’s capacity to litigate was wrong. As Swift J held:
22. Nevertheless, my conclusion is that in this case the Employment Tribunal was wrong to conclude that an assessment of AB’s capacity to litigate was not necessary. It is right that any Tribunal must take care before concluding that assessment of a litigant’s capacity to litigate is necessary. Simler P’s words of warning, at paragraph 38 of her judgment in Jhuti, are important. Tribunals must not permit arguments about litigation capacity to be used discriminately or unscrupulously. The risk of misuse must be carefully policed. However, where there is legitimate reason to doubt a litigant’s capacity to litigate, that issue must be addressed. A litigant who lacks the capacity to litigate lacks the ability fairly to participate in legal proceedings. It is unfair to permit proceedings to continue in those circumstances until that litigant’s interests are properly represented whether by a litigation friend or a court-appointed Deputy.
23. The way AB presented to the Employment Tribunal on the afternoon of 25 July 2017 did provide reason to suspect that she might not have had capacity to conduct the litigation. She did not appear to recognise her counsel; and she appeared unable to respond to simple questions. Although it is true that the presumption of capacity at section 1(2) of the 2005 Act can only be displaced by evidence that establishes a lack of capacity, the issue for the Employment Tribunal on 25 – 26 July 2017 was not to decide whether AB lacked capacity but whether there was good reason for concern that AB might lack capacity such that an assessment was required.
24. In reaching its decision that no such assessment was required, the Employment Tribunal relied on four matters: (a) the view of AB’s lawyers that they were satisfied they were able to continue to act for AB; (b) the views of Dr Ornstein in a report dated 21 July 2017; (c) the fact that neither Dr Ornstein or Dr Stein had notified the Employment Tribunal that their opinion was that AB lacked capacity; and (d) and the presumption at Section 1 (2) of the 2005 Act.
25. Reasons (a) and (c) do not withstand scrutiny. Dr Ornstein’s capacity report dated 21 July 2017, even though written a matter of days before the remedies hearing commenced (on 24 July 2017), was written only on the basis of Dr. Ornstein’s prior engagement with AB. The last time he had examined AB was on 28 April 2017. More importantly Dr Ornstein had not been present at the Tribunal on the afternoon of 25 July 2017. Next, the Tribunal’s reliance on the absence of a report from either Dr Ornstein or Dr Stein stating an opinion that AB lacked litigation capacity was illogical. As the Tribunal ought to have realised, neither Dr Ornstein nor Dr Stein had had the chance to examine AB or express an opinion in light of events of the afternoon of 25 July 2017. Moreover, this part of the Tribunal’s reasoning indicates that it was failing to address the right question. The question at this stage was not whether AB lacked capacity to litigate but whether there was a permissible basis for enquiries to be made as to whether she lacked that capacity. Taken together, these points entirely undermine the Tribunal’s reliance on the views expressed by AB’s lawyers that they were “able to continue to act for AB”. Given the way that AB had presented at the Tribunal hearing, and the obvious concern her lawyers had previously had in respect of capacity, which had led them to obtain Dr Ornstein’s capacity report of 21 July 2017, and the lack of an up to date expert opinion, the Tribunal placed more weight on the assertions of AB’s lawyers than those assertions could rationally bear.
26. This leaves the Tribunal’s reliance on the section 1(2) presumption of capacity. The presumption of capacity is important; it ensures proper respect for personal autonomy by requiring any decision as to a lack of capacity to be based on evidence. Yet the section 1(2) presumption like any other, has logical limits. When there is good reason for cause for concern, where there is legitimate doubt as to capacity to litigate, the presumption cannot be used to avoid taking responsibility for assessing and determining capacity. To do that would be to fail to respect personal autonomy in a different way. As Simler P pointed out in Jhuti, a litigant who lacks capacity is effectively unrepresented in proceedings since she is unable to take decisions on her own behalf and unable to give instructions to her lawyers. Thus, although any Tribunal should be alert to guard against attempts by litigants to use arguments about capacity improperly, if, considered objectively, there is good cause for concern that a litigant may lack litigation capacity, an assessment of capacity should be undertaken. What amounts to “good cause” will always require careful consideration, and it is not a conclusion to be reached lightly. For example, good cause will rarely exist simply because a Tribunal considers that a litigant is conducting litigation in a way with which it disagrees, or even considers unreasonable or vexatious. There is likely to be no correlation at all between a Tribunal’s view of what is the “common-sense” conduct of a piece of litigation and whether a litigant has capacity to conduct that litigation. Something qualitatively different is required.
27. In this case, the Tribunal’s reliance on section 1(2) of the 2005 Act was in error. The Tribunal relied on the section 1(2) presumption to create Catch-22: a conclusion that an assessment of AB’s capacity to litigate would only be appropriate if there was already expert evidence that she lacked capacity to litigate. That was a misapplication of section 1(2) of the 2005 Act. Section 1(2) does require any lack of capacity to be “established”; but it does not require a lack of capacity to be established before a court can require an assessment of capacity. That proposition only has to be stated to be recognised as self-defeating. In the present case, the only issue for the Tribunal raised by RBS’s application was whether there was good cause for concern that AB might lack capacity to conduct the litigation. In this case good cause for concern plainly did exist. The Tribunal ought to have concluded that an assessment of AB’s capacity to conduct the litigation should have been undertaken.
Paragraph 26, in particular, is hugely helpful in terms of finding its way through the presumption problem, not just in terms of litigation capacity but also more broadly.