LBX v K & Ors

Capacity must be assessed by reference to the decision actually in issue and the information reasonably relevant to it. The assessment must distinguish capacity from the merits of the decision and from a best-interests evaluation. Before concluding that a person lacks capacity, the assessor must take all practicable and appropriate steps to support decision-making, including presenting information in a form suited to the person’s needs. In borderline cases, tangible or visual aids may be necessary. Relevant information should be expressed in broad, realistic terms. Excessive detail, abstract concepts and remote consequences may set the threshold too high.

The proceedings concerned best-interests decisions for L, a 29-year-old man with mild mental retardation and learning difficulties. It had previously been determined that he lacked capacity in relation to residence and contact. The Official Solicitor sought a preliminary determination of whether L had the potential to acquire capacity concerning residence, contact and some care decisions.

The local authority relied principally on Dr Hall’s assessment that L lacked capacity. The Official Solicitor relied on Ms Whitaker’s use of drawings, visual aids and structured communication, which indicated that L might achieve capacity if appropriately supported. The issue was whether the existing assessment was compliant with the Mental Capacity Act 2005 and whether further assessment was required.

1. Further assessment required. The court held that there had not been a compliant assessment of L’s capacity and that the application could not yet be finally determined. The evidence was sufficient to require further investigation before final best-interests decisions were made.
2. Applicable principles. Capacity is decision-specific. The assessor must identify the relevant information for the particular decision and distinguish the ability to understand, retain and use or weigh that information from an assessment of what would be in the person’s best interests. The court applied the approach in CC v KK [2012] EWHC 2136, LBL v RYJ [2010] EWHC 2664 and PC and NC v City of York [2013] EWCA Civ 478.
3. Support and communication. Under sections 1(3) and 3(2) of the Mental Capacity Act 2005, all practicable and appropriate support must be provided. In L’s case, drawings and other tangible aids were capable of making abstract or difficult information accessible. The court considered Ms Whitaker’s structured, visual approach more reliable and better founded than Dr Hall’s largely verbal assessment.
4. Relevant information. For residence, the relevant information included the available options, their broad nature and facilities, the area and any specific risks, the difference between living somewhere and visiting, activities, access to family and friends, broad care arrangements, financial obligations in broad terms, basic tenancy obligations, co-residents and the possible effect on contact with L’s father. Detailed tenancy law, the precise cost and value of money, and remote long-term consequences were excluded as setting the threshold too high.
5. For contact, relevant information included who the person was, the broad nature of the relationship, the available forms of contact and their positive and negative aspects. L’s evaluations were relevant unless based on demonstrably false beliefs. The importance of family could be considered, but abstract notions such as the nature of friendship, remote consequences and risks not actually in issue were not required.
6. For care, relevant information included the areas requiring support, the type of support, who would provide it, what would happen without support, and the possibility of improper treatment and complaint. Funding arrangements and the overarching system for monitoring and appointing care staff were not relevant information for this assessment.
7. The court also observed that borderline-capacity cases should be subject to structured reviews of capacity and of the most effective means of communication. The matter was adjourned for a further, compliant assessment.

The judgment describes earlier stages in the same proceedings:

• High Court (Court of Protection): Baker J determined the initial proceedings in [2010] EWHC 2422 (COP).
• High Court (Family Division): an earlier judgment was given in [2011] EWHC 2419 (Fam).
• Court of Appeal: K’s appeal was dismissed in [2012] EWCA Civ 79.
• High Court (Family Division): a further judgment followed in [2012] EWHC 439.
• High Court (Family Division): the present court directed a further assessment of capacity and did not finally determine the best-interests applications.