RT v LT & Anor

Capacity under the Mental Capacity Act 2005 must be determined by applying the statutory test to the particular decision and the evidence. The functional criteria in section 3(1) are disjunctive. A person lacks capacity if any one of the specified abilities is absent because of an impairment or disturbance in the functioning of the mind or brain. The inability to use or weigh relevant information is sufficient, even where the person can communicate a clear and genuine wish. The court should normally apply the plain statutory language directly. Earlier authority remains relevant where the statutory wording leaves an issue unresolved or where a specialised context, such as capacity to consent to sexual relations, requires further guidance.

The proceedings were brought under the Mental Capacity Act 2005 concerning LT, aged 23. The court had to decide whether she lacked capacity to decide where she should live and what contact she should have with members of her family. Her father, RT, contended that she had capacity. The local authority relied on expert evidence that LT could not adequately understand, use or weigh information concerning residence and contact.

Moylan J had earlier made interim declarations concerning LT’s capacity, her residence and her deprivation of liberty. The present hearing determined the capacity issues. The question was whether the statutory requirements in sections 1 to 3 were satisfied in relation to the specific decisions.

1. The court found that LT lacked capacity to decide where she should live and what contact she should have with members of her family. The issue of her best interests was left for discussion between the parties, with liberty to apply for an agreed order or further directions.

2. Under section 1 of the Mental Capacity Act 2005, capacity was presumed and all practicable steps had to be taken to assist LT. The court accepted that those steps had been taken. LT’s capacity was assessed on the balance of probabilities.

3. LT satisfied the diagnostic test in section 2(1). She had a mild learning disability and a significant disorder of social functioning and interaction, amounting to an impairment of, or disturbance in, the functioning of the mind or brain. The court guarded against reliance on age, appearance or behaviour alone.

4. The abilities in section 3(1)(a) to (d) are alternatives, not cumulative requirements. It is sufficient that one inability is established. The decisive inability was under section 3(1)(c): LT could not use or weigh relevant information as part of the decision-making process.

5. The expert evidence showed that LT considered only the positive aspects of returning home, could not identify or incorporate countervailing risks, and could not assess the consequences of contact for herself or others. Her genuine wish to return home and have contact did not establish capacity. The relevant decisions required an ability to weigh the advantages and disadvantages, not merely to express a preference.

6. The court accepted that the plain words of the Act should ordinarily be applied directly to the facts. Earlier authority was not rendered irrelevant, however. It might be necessary in cases involving questions not fully resolved by the Act, including capacity in relation to sexual relations. The court therefore treated the use of authority in the present case as unnecessary but not improper.

Not stated in the judgment.