Landmark decision on belief and the mental capacity test

A new decision from the Court of Appeal confirms that the previously established legal approach to the relevance of a patient’s belief in their illness and prognosis is wrong and contrary to Court of Appeal authority. The successful appeal against the first instance Court of Protection decision that Sudiksha Thirumalesh (‘Sudiksha’) lacked capacity to make decisions about her medical treatment, including palliative care, was brought by her parents. Sudiksha tragically died 35 days after the Court of Protection decision. In a previous decision, the Court of Protection authorised the publication of Sudiksha’s name and the treating Trust, University Hospital Birmingham NHS Foundation Trust.

Sudiksha was born with a rare mitochondrial disorder for which there was no cure. She was adamant that she wanted to “die trying to live” and was keen to undertake experimental nucleoside treatment in America or Canada. The collective view of her treating clinicians was that she was “actively dying” and considered palliative care appropriate.

The Court of Appeal decision is noteworthy for several reasons.

It serves as a reminder of the statutory two-stage test for mental capacity and the ordering of the capacity test. It also confirms there is no “belief” requirement in the ‘functional’ aspect of the mental capacity test and that no further “gloss” is required on the statutory wording of the Mental Capacity Act.

Mental capacity test

1. Section 2 MCA 2005: This is often referred to as the ‘diagnostic test’ for capacity and assesses whether a person lacks capacity because of an impairment of, or a disturbance in the functioning of the mind or brain.

2. Section 3 MCA 2005: This is sometimes referred to as the ‘functional test’ and assesses whether the person can understand the information relevant to the decision, retain that information, use or weigh it and communicate information relevant to that decision.

The decision has put beyond doubt the ordering of the mental capacity test:

“… bound by the Supreme Court decision in JB namely that questions under section 2(1) MCA should be first as to whether P is unable to make a decision for themselves by reference to section 3(1), the functional test. If they are not so able, consideration is given at the second stage to whether that inability is because of an impairment of, or a disturbance in, the functioning of the mind or brain (section 2(1), the mental impairment test).”

It is also worth flagging the appeal court’s reference to the submissions of Alex Ruck Keene KC and Neil Allen, acting for MIND as an intervener in the appeal on a more appropriate term for the ‘diagnostic test’ “would be to refer to the “impairment test” rather than the diagnostic test given that, in his submission, no diagnosis of mental illness is required in order to satisfy the test (see North Bristol NHS Trust v R [2023] EWCOP 5 (“North Bristol”) at [47]-[48]). As what is required is that the inability to make a decision is “because of” an impairment of mind, it follows that a delusional belief on Sudiksha’s part would amount to an impairment of mind. A decision, however, which to many older and/or more experienced people would seem to be thoroughly unwise, would not, without more, amount to such an impairment.”

The ‘functional test’

The decision clarifies the approach to the ‘functional test’ used to determine whether a person has the mental capacity to make a decision. The issue on appeal was whether a person’s ability to understand, use and weigh information relevant to a decision depends on that person believing that the information is reliable and true. This view that the functional test contains such a belief is referenced in the Re MM case in which Mr Justice Munby as he then was said:

“If one does not "believe" a particular piece of information then one does not, in truth, "comprehend" or "understand" it, nor can it be said that one is able to "use" or "weigh" it. In other words, the specific requirement of belief is subsumed in the more general requirements of understanding and of ability to use and weigh information.”

The Appeal Court found that Mr Justice Munby’s view that a belief requirement is subsumed in the requirements set out in the MCA was wrong and based on wrongly interpreting the case of Re MB (Medical Treatment).

“…The Official Solicitor submitted that a person who does not believe relevant information, whether it be factual or opinion, may lack capacity, but equally they may not. The meaning of each of the words “understand”, “use” and “weigh” is, she submits, different from the meaning of the word “believe.” The statutory language Miss Gollop submits is complete in meaning: there is no missing meaning, and no implicit or subsumed meaning that needs to be made explicit and no addition or embellishment is required. I agree.” Paragraph 58 of the judgment.

The Appeal Court concluded that there was an error of law in regarding the “absence of belief as determinative of the functional test” and as such set aside the Court of Protection’s final declaration of incapacity with the presumption of capacity applied.

The judgment is given by Lady Justice King with whom Lords Justice Singh and Baker agree. We understand that the decision is not being appealed.

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