Thirumalesh Chellamal Hemachandran & Anor v Sudiksha Thirumalesh (dec'd) & Anor

Under the Mental Capacity Act 2005, there is no separate requirement that a person must believe relevant medical information before they can understand it or use and weigh it. A lack of belief may be relevant on the facts, but is not determinative of the functional test in section 3(1).

The presumption of capacity, personal autonomy and the protection for unwise decisions require particular care where a patient rejects medical advice. A court may depart from unanimous expert evidence, but must identify material supporting that departure and give full reasons. A formal diagnosis of mental impairment is not required, but any inability to decide must be causally connected to an impairment or disturbance of mind or brain.

Sudiksha Thirumalesh, aged 19, had a progressive and terminal mitochondrial disorder. She remained conscious and could communicate while receiving intensive life-sustaining treatment. She wanted active treatment to continue and wished to pursue experimental nucleoside therapy abroad, notwithstanding the treating clinicians’ view that it could not assist her.

On 7 August 2023, Roberts J in the Court of Protection declared that she lacked capacity to give or withhold agreement to medical treatment, including palliative treatment. The judge held that Sudiksha’s refusal to accept her prognosis meant that she could not understand or use and weigh the relevant information, and that this arose from an impairment of mind.

Sudiksha died before any best-interests hearing. Her parents nevertheless appealed the declaration. The central issue was whether disbelief in an objectively supported prognosis necessarily prevented her satisfying the functional test for capacity.

1. Appeal allowed. Lady Justice King, with whom Singh and Baker LJJ agreed, set aside the declaration of incapacity. The statutory presumption under section 1(2) of the Mental Capacity Act 2005 therefore applied. Sudiksha was to be treated as having had capacity to decide whether to consent to or refuse medical treatment until her death.

2. The judge had erred in treating belief in medical information as an essential element of understanding, or of using and weighing information, under section 3(1). The statutory language contains no separate belief requirement. A person’s disbelief in a prognosis or treatment information may, in the particular circumstances, show an inability to understand or use and weigh it. It does not inevitably do so. The contrary approach derived from [2007] EWHC 2003 (Fam) was inconsistent with the proper reading of the Act and with the approach in [1997] 2 FLR 426.

3. The correct assessment follows the sequence confirmed in [2021] UKSC 52: first, whether the person is unable to make the decision by applying the functional criteria in section 3; secondly, whether that inability is because of an impairment of, or disturbance in, the functioning of mind or brain. It was unnecessary to decide whether Sudiksha would have failed the functional test if the correct, non-absolute approach to belief had been applied.

4. The judge had also failed to give adequate reasons for rejecting the unanimous final opinion of the two psychiatrists that Sudiksha had capacity. Her reliance on an earlier report prepared before one expert had interviewed Sudiksha was not justified by an analysis of his later assessment or by material capable of supporting the departure. This was especially important given the presumption of capacity, autonomy, and the rule that an unwise decision is not itself incapacitous.

5. A formal professional diagnosis is not a necessary precondition to establishing impairment. However, the facts did not justify finding that Sudiksha’s decision-making inability, if any, was caused by such an impairment. Grounds 1, 2 and 6 succeeded; Grounds 3, 4 and 5 were dismissed.

• Court of Appeal (Civil Division): Allowed the parents’ appeal and set aside the declaration that Sudiksha lacked capacity to consent to or refuse medical treatment.
• Court of Protection: Roberts J made the declaration of incapacity on 7 August 2023. No best-interests decision was made before Sudiksha’s death.