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Judicial Challenges: Evaluating capacity to litigate and ability to make treatment decisions

09 September 2020
In the space of 10 days we have had 2 judgements on capacity that warrant review and an appreciation of the challenges that our judiciary face in this arena. First, King v Wright Roofing required the Honourable Mr Justice Kerr to decide if the claimant's head injury rendered him unfit to litigate. Second, Northamptonshire Healthcare NHS Foundation Trust v AB asked Mrs Justice Roberts to evaluate if a patient with anorexia lacked capacity to make decisions in relation to her treatment for that condition. 

Capacity to Litigate

In King the claimant's solicitors and litigation friend were of the view that, as at the outset of the claim, the claimant continued to lack capacity to litigate and manage his compensation, but the claimant disputed this. Essentially, following his accident, when he fell 40 feet through a skylight fracturing his skull (liability admitted, contributory negligence disputed) the claimant wanted to settle his claim, and move to the Dominican Republic (where he had spent many happy holidays) bypassing his solicitors and reaching settlement directly with the defendant's insurers. He saw the litigation process as a 'money spinner' for the professionals involved, in contrast, his advisors and litigation friend were concerned that he would under-settle and squander his compensation.

The foundation for evaluating capacity to litigate is set out in the Mental Capacity Act 2005. In summary:

  • Capacity is to be presumed, unless absence is proved on the balance of probabilities
  • Inability to make a decision can only be found if all practicable steps to assist are unsuccessful
  • An unwise decision is not evidence of incapacity

Capacity is time specific (so can vary over the course of claim as was argued in King) and requires an assessment as to whether the individual is unable to make a decision due to impairment in functioning of the mind/brain. To perform such an assessment requires a 4 stage test:

  1. Can the person understand the information relevant to the decision required?
  2. Can they retain that information?
  3. Can they weigh up the information to arrive at a decision?
  4. Can they communicate their decision?

After considering factual and expert evidence (but not hearing directly from the claimant) Mr Justice Kerr expressed concerns as to the divisions between the claimant and those advising him, as well as the legal costs in dealing with this preliminary issue. He concluded that the claimant lacked capacity to litigate 'by a fairly narrow margin' on the basis that he failed the 3rd stage of the test, as he was unable to weigh up information relevant to the value of his claim. Likewise, 'by the narrowest of margins' he was unable to manage his own finances.

Capacity for making decisions about medical treatment

Every case that involves asking a judge to rule on a treat/no treat decision is a legal and emotional challenge for all involved.  For Mrs Justice Roberts in AB she was being asked to sanction that a 28 year old woman who had been struggling Anorexia Nervosa since aged 13 -

  • Should undergo no further active treatment for her condition (in her best interests)
  • Lacked capacity in relation to decisions as to treatment of her anorexia

For those that have the time to read this decision it is an emotional rollercoaster. The patient describing being bullied at school (too fat then too thin) and then ultimately bullied by her illness. She wanted no more inpatient treatment as force feeding was the only 'option' and instead wanted to decide her own path, knowing she was (at only 4 stone and confined to a wheelchair) at serious risk of death. The family and treating team had arrived at the 'solution' of palliative care but was this right? 

Mrs Justice Roberts (applying the test above) found that AB's irrational fear of weight gain yet still wanting to live meant that she lacked capacity to decide if she should be force fed, but this was not the end of the matter as she then needed to consider what was in AB's best interests? It was accepted at the outset that force feeding could not be sanctioned and ultimately that AB did have capacity to decide all other aspects of her treatment and that such declaratory relief was to be drafted accordingly. 

The outcome in both cases demonstrates the roles for expert evidence, factual testimonies and how this information is slotted into the helpful matrix that statute provides but also the life changing decisions that judges in interpreting all of this information are required to make.  

Further Reading