Table 1

Typology of capacity rationales from 131 Court of protection and Court of appeal cases, 2008–201818

RationaleDescriptionInability example quoteIntact ability example quoteMCA criteria most often linked to each rationale*
1. To grasp information or conceptsUnable to grasp, on a purely intellectual level, concepts (their nature or meaning) or information (eg, volume, detail, complexity) relevant to the decision.[P] has barely an inkling of the health risks involved. She was unable to link sex to pregnancy. Indeed she had virtually no idea how her babies came to be in her tummy (as she put it)He understands that the relationship is exclusive, and in broad terms that marriage includes society, support and assistance, and the concept of sharing a common home and domestic life, and that two people come together and owe each other rights and responsibilities Understand (90%);
Use or weigh (12%)
2. To imagine or abstractUnable to imagine or abstract and therefore has difficulty considering relevant factors, including options, which are not concretely present or familiar.She struggles with abstract thought such as picturing herself in a different settingHe understands that there is a choice between home or an institution and living with his family and he prefers the latter Use or weigh (55%);
Understand (45%)
3. To rememberUnable to remember facts or events that are needed to make the decision.He had no memory of making the two LPAsIt was also clear to me that he had retained information given to him at various stages about these matters, including information imparted during the sex education sessions he has attended.Understand (59%);
Retain (45%)
4A. To appreciate: delusions/confabulationsUnable to apply information (including consequences of the decision) to oneself due to delusions or confabulations.[P] believes that the tumour was placed in her body by ‘screen things’ with the aim of influencing the doctors into stating that the operation was neededThe view that [P] wishes to put forward is that she does not want the case to continue and she would prefer to stay where she is… I do not think her view is unreasonable or driven by delusion.Understanding (60%);
Use or weigh (51%)
4B. To appreciate: insight into condition or care needsUnable to apply information (including consequences of the decision) to oneself due to lack of insight into one’s condition or associated care needs.[P] denies that she suffers from schizophrenia, that she needs to take medication to remain well and avoid consequent relapse of her illness and renal failure. As a result she does not understand the need for supported accommodation.She demonstrated an understanding of and insight into her care needs and the reality of life if she returned home. She clearly understands that she is in need of total support and would need carers to visit four times a day. Although she said she could dress herself ‘if I had to’, I did not interpret this as indicating a significantly exaggerated or distorted view of her capabilities. On the contrary, I found her to be broadly realistic as to her physical limitations.
4C. To appreciate: otherUnable to generally apply information (including consequences of the decision) to oneself.The point is that despite the overwhelming evidence to the contrary, [P] does not begin to appreciate that [Q] will not, under any circumstances, look after himShe denied inappropriate use of social media (‘I have kept away from social media … I don’t want to go back to square one’), showing an understanding that people contacting her through social media ‘might be a risk to me’
5. To value or careUnable to care about or value issues relevant to the decision hence unable to seriously consider certain options. This could relate to generalised apathy, or a strong attachment, fear or other emotion which overwhelms ability to value relevant information.The compulsion to prevent calories entering her system has become the card that trumps all others[P] [is] acknowledging her prognosis and choosing to give it no weight as against other information within the context of her own values and outlook when making a decision Use or weigh (91%);
Understand (13%)
6. To think through the decision non-impulsivelyUnable to think through the decision and proceeds to make the decision impulsively or to act in impulsive manner.The frontal lobe damage…means that a person such as [P] works on impulse. If the frontal lobe is disengaged from the decision-making process the decision is not thought outNone. Use or weigh (88%);
Understand (19%)
7A. To reason: flexible thinkingUnable to carry out basic mechanics of reasoning, specifically to employ flexibility of thought in responding to contrary evidence or concerns.If [P] developed a fixed idea about a subject, it was very difficult for her to incorporate counterbalancing or conflicting information[It is] not the case that [P]has undertaken the decision making exercise in relation to dialysis solely on the basis of a concrete or ‘black and white’ view taken in respect of her prognosis but rather on the basis of placing in the balance many factors relevant to the decision Use or weigh (87%);
Understand (14%)
7B. To reason: balancing pros and consUnable to carry out basic mechanics of reasoning, specifically to compare pros/cons, advantages/disadvantages or benefits/risks of the decision.She cannot at the moment weigh the evidence up, identifying the pros and cons of a particular course of treatment, or really think about it at all. He said that when confronted with the balancing exercise she simply becomes both distressed and disengaged.[P] gave [Dr X] a clear indication that she could weigh up the positives and negatives of whether or not to engage in sexual behaviour
7C. To reason: otherUnable to generally carry out basic mechanics of reasoning.She acknowledged receiving letters from [Q]. But she became significantly distressed, thought-disordered and preoccupied when invited to consider whether she might wish to respond to those lettersAfter consideration, he suggested two solutions which may not be implementable but are reasonable alternatives to consider. In so doing, he demonstrates an ability to think systematically and problem solve.
8. To give coherent reasonsUnable to give any reasons for their choice or only able to give reasons which are internally contradictory.He was not able to give coherent reasons for wishing to live where he isShe is nevertheless able to describe, and genuinely holds, a range of rational reasons for her decision. When I say rational, I do not necessarily say they are good reasons, nor do I indicate whether I agree with her decision Use or weigh (63%); Understand (37%)
9. To express a stable or consistent preferenceExpresses different or contradictory preferences at different times such that it is difficult to ascertain or to carry out the choice.[P]’s more recent views about sterilisation have [not] shown any greater reliability, oscillating between being vehemently opposed to it, to requesting it immediately (and being distressed when this could not be arranged), before reverting to opposition.[P] understands her preferences clearly and has maintained her position consistently over the three conversations she has had with him, namely that she is prepared to continue to live where she is now. Communicate (44%);
Use or weigh (44%)
  • *Only the two most often linked MCA criteria are listed as they account for the vast majority of linkages. Percent values can add to greater than 100% because court judgements sometimes give rationales with links to more than one MCA criterion.

  • MCA, Mental Capacity Act 2005.