PH v A Local Authority

Capacity must be assessed by applying the statutory test in the Mental Capacity Act 2005 “no more and no less”. The court must consider whether the person can understand, retain, and use or weigh the salient information relevant to the decision. An emotionally charged wish to return home does not remove the need to assess those abilities. The court must consider all relevant evidence, including expert, clinical and social-work evidence, while remaining alert to protective bias. Capacity cannot be denied merely because a decision is unwise, but a person lacks capacity where cognitive impairment prevents meaningful engagement with the practical consequences, risks and care arrangements involved.

PH, who suffered from Huntington’s Disease, applied under section 21A of the Mental Capacity Act 2005 to terminate a standard authorisation permitting his deprivation of liberty at a specialist residential home. The preliminary issue was whether he lacked capacity to decide whether he should be accommodated there for care and treatment. The court was also invited to determine, under section 15, whether he had capacity to make decisions about his residence and care generally. The evidence was divided between an independent neuro-psychiatrist and the clinicians and social worker who had treated or worked with PH over a longer period.

1. The court found that PH lacked capacity to decide whether he should be accommodated at Y Court for care and treatment, and lacked capacity to make decisions about his residence and care generally. The general declaration was made for six months and directed to be reviewed in the autumn term.

2. The burden was on the local authority to establish incapacity on the balance of probabilities. The statutory principles required an assumption of capacity, reasonable practicable assistance, and recognition that an unwise decision does not itself establish incapacity.

3. The court applied the diagnostic test in section 2(1) and the functional test in section 3(1) of the Mental Capacity Act 2005. The relevant information included PH’s care needs, the risks associated with Huntington’s Disease, the nature of twenty-four-hour care, the involvement of different carers, and the practical consequences of returning home.

4. Although PH could communicate his wishes, the evidence established that he could not understand, retain, or use or weigh much of the salient information. His fixation on returning home was not determinative. The court found that he did not appreciate the deterioration in his condition, the extent of his care needs, the risks of choking and aspiration, his behavioural difficulties, or the reasons why his previous home arrangement had broken down.

5. The court attached greater weight to the combined evidence of three experienced clinicians and the allocated social worker than to the independent expert’s assessment, which was based principally on a single ninety-minute interview. The court emphasised that professional evidence must be assessed objectively, while recognising the risk that protective concerns may influence assessments.

6. The court rejected any requirement that evidence of incapacity be “compelling” or that the statutory test be construed narrowly. The correct approach was to apply the statutory language and safeguards directly.