Testing for incapacity? Functional first

An update from a regular series written by Mr Robert Wheeler, director, department of clinical law, where he considers various aspects of clinical law that our nursing and medical staff rely on when caring for patients.

A recent case emphasises practical aspects of testing for incapacity. It reminds us of the order in which we use the two-part test of incapacity, and why that is important.

The functional test must be performed first. Only if the patient is unable to understand, weigh and decide should the second stage become engaged; is there a disorder of the mind or brain?

The case concerned TM, a man whose date of birth was unknown, probably in his forties, believed to originate in Zimbabwe. TM had been found collapsed on 30 December 2020 in a bus shelter; homeless, living on the streets of Manchester. The frostbite of both his feet was severe. Admitted to hospital he was ‘manifestly confused’ and strongly resisted assistance or care. The initial diagnosis was of soft tissue infection in his legs, but when an acute kidney injury was revealed, lower limb ischaemia and consequent compartment syndrome revealed the true cause of his renal impairment.

A vascular surgeon advised bilateral below knee amputation as the only appropriate surgical plan. TM immediately declined the offer.

From the surgical (and surgical second opinion) perspective, refusal of surgery would lead to death from sepsis. TM was severely immunocompromised, a consequence of his intercurrent HIV, for which he had not been taking his medication for some time. The court was told that bilateral amputation would result in long term survival.

TM’s psychiatrist found no evidence of psychosis, but agreed that he lacked capacity. Throughout the week following his admission TM had been found unable to make decisions about his treatment; he could not weigh the different consequences for his future of complying with or refusing surgery. Nevertheless, in his short hospital stay, TM had been compliant with the great majority of his medical management, save for the suggestion of amputation.

CT imaging of TM’s brain revealed chronic white matter changes. The court was told that these might represent HIV related disease. Progressive multi focal leukoencephalopathy might ‘to some extent’ explain TM’s difficulty in making rational judgements or in recalling significant events in his past. The judge found that a number of cerebral pathologies, separately or in combination, could explain the disturbance or impairment of TM’s mind or brain. That was sufficient for the court to find as a fact that his impairment had been established.

The judge was pleased to be able to visit TM, albeit remotely; intelligent and articulate, he engaged the judge ‘...easily, openly, and with great courtesy...’ but was unable or unwilling to engage with the consequences of there being no treatment other than amputation. He was very clear that he would get better. The judge was ‘…left with a very strong sense that he wanted to get better’.

Accordingly, the court found that TM was a man who wanted to live, and expressed no wish to die. ‘This is a man who has consistently maintained, and I consider genuinely believes, that he would get better without treatment. Unfortunately, that possibility is entirely irreconcilable with the medical evidence’. On this basis, the court found that TM lacked capacity to make medical decisions concerning his necrotic legs; and that it was in his best interests to undergo bilateral amputation.

The wording of the judgement made it crystal clear that the questions relating to the ‘functional’ element of the test of incapacity must be the first to be asked. Can the person understand, retain, use (‘sift’) and weigh relevant information, and come to a decision?

Only if it becomes clear that they cannot do so, despite the support provided by the MCA 2005, should the second ‘diagnostic’ question be engaged: Whether the failure to make a decision is because of an impairment or disturbance of the mind or the brain?

The danger in failing to consider the functional element of incapacity before the diagnostic is the risk that the strength of the causative connection between P’s inability to decide and his mental impairment may be diminished. The MCA s2 (1) states clearly that the inability to make a decision is because of an impairment of, or a disturbance in the functioning of the mind or the brain.

If this exercise is performed in reverse; collecting the ‘diagnostic’ element first, allows the key words because of to lose their prominence...and may be replaced by weaker words, diminishing the causative nexus between function and diagnosis. The courts strongly believe that the ‘because of ‘connector must not be allowed to be weakened. The MCA Code of Practice will soon be revised, and this judicial guidance for interpreting the Act will doubtless be reflected in the revised version. ‘Function’ comes first, as Parliament intended.

Robert Wheeler
Department of clinical law, May 2021