[This guest further note is prepared by Wayne Martin and Fabian Freyenhagen of the Essex Autonomy Project]

We are grateful to the Official Solicitor to the Senior Courts of England and Wales for his detailed Reply to our Note on the expression “use or weigh,” as it is used in sec. 3(1) of The Mental Capacity Act 2005 (MCA).

On one fundamental point we wish to emphasise our agreement with the Official Solicitor’s remarks. The first principle of the MCA is the principle of presumption – that is, the principle that “a person is to be presumed to have capacity unless it is established that he lacks capacity.”1 Nothing in our original Note was intended to suggest that patients or care recipients should be required to “prove their capacity” by passing some test, or “getting over a bar.” The burden of proof is precisely the reverse: it is incapacity that must be proven, and it falls to the one alleging incapacity to provide evidence sufficient to overturn the presumption.

Beyond this point of agreement, however, we find ourselves unconvinced by the Official Solicitor’s arguments. His remarks are presented as a refutation of our position, but close consideration of the evidence he cites in fact provides further support for our principal conclusion.

Before turning to the relevant details, it will be worthwhile to orient ourselves with a mundane example. Suppose that in a certain game every player must be able to run, hit, throw and catch. If we are characterizing the positive ability to play that game, we will use “and” as our conjunction: every player must be able to run and hit and throw and catch. If your job is to recruit new talent to the team, you will scour the land looking for individuals who have the full package of all of those abilities. That is, you will operate with a conjunctive standard, and you will be on the lookout for abilities.

But now suppose that your job is to winnow the roster. As part of the first cull, your assigned task is to cut anyone from the team who lacks the ability to play the game. You must now be on the lookout for inabilities, and you will operate with a disjunctive standard. Anyone on the roster with an inability to run or an inability to hit or an inability to throw or an inability to catch is liable to be thanked and dismissed. Note that you need not establish the absence of all these abilities; the demonstrable lack of any one is disqualifying.

In our Note, we argued that the definition of decision-making ability in MCA sec. 3(1) follows the same basic pattern. The text of the MCA implicitly relies on a conjunctive understanding of the ability to make decisions. That positive ability comprises the ability to understand and retain and use and weigh and communicate. The demonstrable absence of any one of these abilities (for a particular decision at a particular time) would therefore suffice to warrant a finding of the lack of decision-making ability. On this basis we respectfully submitted that MacDonald J had erred in claiming that a finding of incapacity requires the person asserting lack of capacity to demonstrate both an inability to use and an inability to weigh.2

So what contrary evidence does the Official Solicitor offer in reply to our Note? His rebuttal begins by drawing attention to para 3.7.2 of Bennion on Statutory Interpretation, which concerns the use of the terms “and” and “or” in statutes.3 According to Bennion, a single occurrence of an appropriate conjunction can be taken to imply that each of the preceding paragraphs is separated by the same conjunction.

We are grateful to the Official Solicitor for drawing the attention of readers of this Newsletter to this authority, for it directly supports our interpretation of MCA sec. 3(1). By Bennion’s principle, the use of the word “or” in sec. 3(1)(c) warrants the conclusion that there are implied uses of the word “or” throughout the list of inabilities. This is exactly the claim we made in our Note. In the words of the Official Solicitor:

The list which the paragraphs of the subsection constitute is short, and no contrary indication is discernable, so I suggest that it is clear that the paragraphs of the subsection should be read as if ‘or’ were between them.

We are wholly in agreement. That is precisely why we referred to the definition as a disjunctive definition. It follows that absence of any one of the enumerated abilities suffices to establish the inability to make a decision.

A second piece of evidence cited in Official Solicitor’s rebuttal comes from the 2015 edition of The Court of Protection Practice. Para. 2.80 describes the MCA as “translating this former common law provision into statute.” But note carefully how that same paragraph describes the common law provision:

[T]he courts ... defined the process as the ability to weigh all relevant information in the balance as part of the process of making a decision, and then to use the information in order to arrive at a decision.4

Once again we are grateful to the Official Solicitor for drawing the attention of readers to this important piece of evidence. There are two crucial points that merit particular attention. Notice first that unlike MCA sec. 3(1), the definition that is offered here is a definition of decision-making ability, rather than decision-making inability. Secondly, notice the use of the words “and then” – clearly implying not a ‘single composite phrase’ describing one ability, but two discrete abilities. According to this definition, the ability to make a decision requires the ability to weigh and then to use relevant information! This is precisely the point that we have respectfully urged against the claim advanced in MacDonald J’s judgement. If the ability to decide requires the ability to weigh and then to use, then the demonstrable absence of either ability is a sufficient basis for a finding of incapacity for the matter at hand.5 Compare: if the ability to play requires the ability to hit and then to run, then I will be cut from the roster if I lack either ability.

A third source upon which the Official Solicitor relies in his Reply is the MCA Code of Practice. In our Note, we cited an example of a pre-MCA case which would seem to support MacDonald J’s interpretation of the “use or weigh” clause of MCA sec. 3(1).6 But in our view care must be exercised in making use of that precedent. The task of the courts has changed since the time of that 1997 ruling. Because we now have the MCA, a judge’s role is to interpret and apply the definition of incapacity that has been adopted by Parliament. Prior case law can certainly be consulted in order to provide context for interpreting the statute. But if Parliament diverges from precedent, it is the statutory formulation that must prevail. By way of reply, the Official Solicitor refers us to para 4.33 of the MCA Code of Practice, which asserts that “the new definition of capacity is in line with the existing common law tests, and the Act does not replace them.” 7

We respectfully submit that the Official Solicitor may have misinterpreted the force of this remark by failing to attend to its context. It is imperative, first, to read para. 4.33 in the context of the paragraph which immediately precedes it. Para 4.32 states:

There are several tests of capacity that have been produced following judgments in court cases (known as common law tests). These cover:

  • capacity to make a will
  • capacity to make a gift
  • capacity to enter into a contract
  • capacity to litigate (take part in legal cases), and
  • capacity to enter into marriage.8

When the Code proceeds in the next paragraph to state that the MCA “is in line with the existing common law tests,” this latter phase must be understood in the sense that has just been defined.

That is, where the common-law has provided tests specific to particular classes of action, the Code states that these remain valid. But this by no means entails that every earlier attempt by judges to provide a general definition of decision-making capacity is to remain in effect. The fact is that those earlier attempts at a general definition have been superseded by the authoritative definition adopted by Parliament.

But there is a further point to be made here. In his Reply, the Official Solicitor quotes only one sentence of para. 4.33 of the Code. It is crucial to interpret that sentence in the context of the whole paragraph in which it appears:

The Act’s new definition of capacity is in line with the existing common law tests, and the Act does not replace them. When cases come before the court on the above issues, judges can adopt the new definition if they think it is appropriate. The Act will apply to all other cases relating to financial, healthcare or welfare decisions.9

Read in its context, then, the passage cited by the Official Solicitor provides no support for the claim that the MCA Code of Practice asserts what we deny, viz., that the definition in the MCA is to be understood as synonymous with every prior attempt by the courts to frame a general definition of decision-making capacity.

One final corpus of evidence merits comment.10 In his Reply, the Official Solicitor appeals to a trio of cases to buttress his claim that the common law definitions are continuous with the MCA. We shall not here undertake to provide commentary on all these cases, but the case of RT v LT [2010] EWHC 1910 (Fam) merits a remark. The judge in the case was Sir Nicholas Wall, who was then President of the Family Division of the High Court. The Official Solicitor cites para. 51: “[T]here will be cases in which it may be necessary to look at pre- or even post Act authority on the question of capacity.” We are in agreement. As we have seen in the Code of Practice, there will be cases in which it will be appropriate to consult the common law tests for specific classes of action. Moreover, looking at the history of common law tests can also prove helpful in interpreting the test articulated in statute. We note, however, that looking at pre-MCA authorities is not the same being bound by such authorities. But we also wish to draw attention to the remark that the President (as he then was) made two paragraphs earlier in the same ruling:

[W]hat we now have is the Act (as amended) and the essential judicial task is to apply the plain words of the Statute to the facts of the case before the court.11

As we have shown, the plain words of the statute express a disjunctive standard of decision-making incapacity.

The foregoing remarks conclude our response to the Official Solicitor. But we cannot resist the temptation to take up the gauntlet thrown down in the last sentence of his Reply. The Official Solicitor there wrote:

I can find no case before or after the MCA in which the court has construed “use or weigh” in the disjunctive way suggested in the Note as the correct interpretation of section 3(1)(c) MCA.

By way of reply to this challenge, we refer readers of the Newsletter to three cases: Re Mrs A [2010] EWHC 1549 (Fam.) (COP); Re E [2012] EWHC 1639 (COP); Re X [2014] EWHC 35 (COP). These cases may not explicitly articulate a disjunctive reading of MCA sec. 3(1)(c), but close attention to the details of the rulings clearly show that such an interpretation is presupposed. The crucial feature shared by all three rulings is that the judge reaches a finding of incapacity on the basis that the person in question was unable to weigh. Nothing is said in these cases is said about the person’s inability to use. Notice that if MacDonald J’s reading of MCA sec. 3(1)(c) were correct, then all three of these rulings would reflect incorrect reasoning. Why? Because according to MacDonald J, a finding of inability to weigh cannot warrant a finding of incapacity unless supplemented by evidence of an inability to use. It should therefore be clear that the judges in these three rulings are not relying on MacDonald J’s conjunctive standard, but on the disjunctive standard that we have defended here and in our earlier Note.

In light of this further analysis of the evidence, we would invite the Official Solicitor and other readers of this Newsletter to endorse our interpretation of MCA sec 3(1)(c). The crucial point of law is as follows: A finding of either an inability to weigh relevant information or an inability to use that information can suffice (provided that other requirements of law are satisfied) to warrant a finding that the person lacks the ability to make a particular decision at a particular time.