Tony Harrop-Griffiths represented the local authority in an appeal before the Vice President of the Court of Protection against a decision that CT, a 55-year-old man, lacked capacity to make decisions about residence and care.
The local authority was supporting the appeal which was brought by Official Solicitor.
Mental health charity Mind was an intervenor in the proceedings.
Vice President of the Court of Protection, Mrs Justice Theis allowed the appeal and highlighted an “evidential divide” on capacity between the clinicians and social workers.
Background to the appeal
CT had problems with drugs and alcohol. He suffered from chronic health issues including epilepsy, COPD (chronic obstructive pulmonary disease), a ‘mixed type cognitive impairment’ depression, PTSD and ‘unstable personality disorder’ and used a wheelchair.
The local authority and Official Solicitor argued CT had capacity but was not litigation competent. The NHS trust argued he lacked capacity.
In September 2024, following a 2-day hearing (which CT attended by video link) the judge found CT lacked capacity to conduct proceedings and to make decisions about his residence or care.
The Official Solicitor appealed that decision, supported by the local authority. Tony had argued at the contested hearing that under the Mental Capacity Act 2005, there should be an assumption of capacity.
How to assess mental capacity
In her judgment, Mrs Justice Theis described the form used by the local authority in their capacity assessment as promoting:
a structured approach to the assessment in accordance with the statutory framework. It identifies the decision, sets out the relevant information the person must understand, retain, use or weigh in regard to the decision, includes what has been done to enhance the capacity of the person to maximise their ability to make the decision for themselves, and then cross checks the person's ability to communicate. It then requests a summary of the options that have been discussed with the person. The form then structures each stage of the requirements in s3 MCA 2005 (understand, retain, use, weigh, communicate).
She also published a checklist for assessing capacity adapted from checklists put forward on behalf of the Official Solicitor and Mind.
Read the full judgment in CT v London Borough of Lambeth & Anor [2025] EWCOP 6 (T3)