Overcoming Challenges in the Mental Capacity Act 2005. Camillia Kong
v City of York Council [2013] EWCA Civ 478, ‘for the Court to have jurisdiction to make a best interests determination, the statute requires there to be a clear causative nexus between mental impairment and any lack of capacity that may be found to exist’(para. 52, emphasis added). This was amplified by Parker J in NCC v TB and PB [2014] EWCOP 14. Interpreting what MacFarlane LJ had said in York, Parker J held that ‘the true question is whether the impairment/disturbance of mind is an effective, material or operative cause. Does it cause the incapacity, even if other factors come into play? This is a purposive construction’ (para. 86).
What does this mean in practice? To use an analogy, imagine I turn up late to an important meeting. When my boss asks me why I’m late, I say that it was because of the bus. The bus was late, effectively causing me to show up late at the meeting. One reading of the approach set out above is that even if additional circumstances strongly influence the inability to decide – for example, relational dynamics, such as mistreatment and coercion – then these would not be sufficient reasons for a finding of incapacity under the MCA. This suggests that practitioners should not consider the actual circumstances of a person’s situation, but focus mainly on whether mental impairment – what’s in a person’s head – affects her decision-making ability. The conditions of mental capacity should therefore be divorced from the individual’s real-life context.
To use the example of Margo, this approach would focus narrowly on whether her Alzheimer’s condition impacts on her ability to make a decision about remaining at home and continuing to live with her son. How does her mental impairment affect her deliberation: is she able to retain and understand the relevant information about the risks/benefits of having contact with her son? Can she use and weigh it and communicate a decision? Concerns about her son’s coercive and potentially abusive conduct could only play a very limited a role in the capacity assessment. Any finding of incapacity has to be because her Alzheimer’s prevents her from passing the functional test. Even if she freely divulges being fearful of her son (an admission of his undue influence) and admits to how this fear aggravates her confusion (how this undue influence impacts on her impairment), these factors would have no bearing on the capacity assessment, particularly if during the test there is little or no evidence that her impairment is directly impacting on her cognitive processes (such as confusion about the information or forgetfulness during the period of assessment). Applying a very narrow version of the causative nexus, Margo has capacity, thereby dramatically altering the nature of the steps it might be possible to take to secure her interests.
From a strict legal perspective, one might argue that this approach provides an important clarification as to which cases fall within or outside the scope of the MCA. It also seemingly provides much more latitude for individuals to make ‘unwise choices’ – a freedom that should be accorded to those with impairments.
The approach, however, does have rather puzzling implications. It appears to advocate that practitioners take individuals with impairments as isolated minds, removed from relationships and bodily interactions within their physical and social world. To use the tardiness example, this would be like my boss viewing my hypothetical decisions and actions as effectively causing my lateness (if I had left early enough, I would have been on time), to the exclusion of actual circumstances (like the bus not turning up on time, or being stuck in heavy traffic due to an accident, or my partner failing to fix my bicycle as promised, or the childminder cancelling last minute and the need to scramble for other arrangements). Despite the mundane nature of this example, even here divorcing our decisions and actions from actual circumstances can have serious consequences. If my boss doesn’t take into consideration any of these factors, she might actually decide that my tardiness is grounds for dismissal. But most of us are unlikely to think such an approach to be fair or appropriate or even commonsensical – the context matters. Likewise, and more pertinently, the context matters when we have to make decisions that affect our lives in profound ways, like who to marry, or where to live, or whether or not to have treatment for a life-threatening condition.
Importantly, we suggest that it is possible to take a different – broader – approach, while still remaining within the four walls of the MCA. We highlight here Re BKR [2015] SGCA 26, a case decided by the Singapore Court of Appeal. Singapore’s Mental Capacity Act 2008 (SMCA) is (materially for these purposes) an exact replica of that within England and Wales. In Re BKR, and for purposes of interpreting the relevant provisions of the SMCA, the Singapore Court of Appeal analysed the York decision in detail and held that evaluations of capacity would have little traction if the specifics of a person’s context and situation were removed from consideration. ‘[M]ental impairment may in some instances affect decision-making ability only in conjunction with P’s actual circumstances’, leading to the conclusion that ‘the court must take into account P’s circumstances in assessing his mental capacity’ (para. 120).8
The Singapore Court of Appeal outlined three conditions where the dynamics of a relationship – such as the actual or possible presence of undue influence – would be pertinent to assessments of mental capacity:
1. Whether the individual can retain, understand, or use the information that relates to whether there might be undue influence being applied, e.g., whether she can grasp that another person may have interests contrary to hers, and if not, whether this inability is caused by mental impairment.
2. Whether the individual is vulnerable to undue influence due to mental impairment, where her will is overborne in such a manner that she is unable to use and weigh the relevant information.
3. Whether an individual cannot realistically hope to obtain assistance in making decisions, where a finding of incapacity is because of the interplay between mental impairment and the lack of support (paras. 125–126).
Though this judgment comes from a different legal jurisdiction, we suggest that sets out an approach that it is entirely legitimate for practitioners in England and Wales to adopt given that: (1) it represents by far the most complete analysis of the interrelationship between impairment and the actions of others; and (2) it expressly seeks to do this within the framework of an Act materially identical to the MCA.
The Re BKR decision highlights a crucial issue. Behind both the MCA and the CRPD is a call to provide support and assistance to individuals so that they can make decisions which affect their lives and can be equal participants in social and political activities. However, directly contradicting this view of supportive decision-making is the picture that can be painted on the basis of what it means to be a decision-maker: an isolated being whose decisions are reached purely in one’s head, regardless of the surrounding context. Stated more bluntly, the picture of a capacitous decision-maker is fundamentally rigged against persons with impairments, providing little space, in reality, for the relational supports and mechanisms that are needed to help realise their decision-making abilities.
Thus, we suggest the Re BKR judgment is right to recommend a more holistic view of persons with impairment. Rather than isolated minds, denuded of all complex factors which shape their personal identity, these embodied, unique individuals are embedded within relationships and actual circumstances. As such, the interplay between the individual and complexities within her context, including the quality and nature of her relationships (whether they apply coercion and undue influence, whether they can realistically provide assistance and support for the individual), should be considered in evaluations of decision-making capacity.
To return to the example of Margo, this more holistic approach would view the relational dynamic between her and her son as highly relevant to the question of Margo’s mental capacity. Questions would be asked as to whether her son’s undue influence worsens her ability to use and weigh information, whether she can understand that her son’s actions and interests might differ from her own, and whether her son can provide any assistance to her in making decisions about her living arrangements. The interaction between Margo’s Alzheimer’s and her actual circumstances – her relationship with her son and isolation from others, the squalid conditions of her home – would be contributing factors that practitioners would consider in their assessment.
We suggest that this approach legitimately allows us to avoid an overly narrow interpretation of the causative nexus. Further, the