Evidence and Causation in Mental Capacity Assessments Pc v City of York Council [2013] Ewca Civ 478

Abstract

McFarlane LJ's leading judgment in PC v City of York Council consistently stresses the 'plain' statutory language of the Mental Capacity Act 2005. In doing so, it reveals how intractably difficult performing an assessment in accord with the Act can sometimes be. In particular, it raises questions about the sources of evidence upon which a finding of incapacity can be based, illustrates that causation under the Act may have been widely neglected, and highlights contestable assumptions that underlie the Act's 'decision-specific' approach to assessment.

Relationships, autonomy and legal capacity: Mental capacity and support paradigms

“…Dialogical approaches thus implicitly confer upon mental capacity assessors 'epistemic privilege' to know a person's 'true' values and beliefs and how these have influenced their reasoning. Yet as Skowron (2014, citing Kittay, 2009 comments, there are reasons for requiring "epistemic modesty" here, being clear about the limits of assessors' knowledge. Stefan (1992Stefan ( -1993 These approaches necessarily require the assessed person to engage in dialogue with assessors about their values, beliefs and reasoning; little attention has been paid to how this might be experienced.…”

A Clinician’s Brief Guide to the Mental Capacity Act

“…Similarly, in The International Protection of Adults it is said that 'if an individual repeatedly makes unwise decisions then a higher capacity assessment threshold applies' (para 11.53). It is arguable that the terminology in section 1(4) of the 2005 Act itself, 'A person is not to be treated as unable to make a decision merely because he makes an unwise decision', allows for the consequences of a decision to be one of the features that capacity assessors take into consideration when assessing whether someone lacks capacity, 19 but that the consequences of making a decision should never be the sole reason that a person is deemed to lack capacity. Although David Gibson has highlighted this tension behind the capacity assessment process under the Mental Capacity Act, 20 it is antithetical and, arguably, contrary to the substantive provisions and ethos of the Act itself to suggest that there is a 'higher' capacity threshold for those who make repeatedly unwise decisions, or that the threshold depends on the consequences of the decision or the resulting harm.…”