The Mental Capacity Act stipulates a person is treated as unable to make a decision only if they cannot understand and retain the relevant information, use or weigh it as part of the process or communicate it, whether by talking, sign language or other appropriate means.

Many of the cases we deal with involve disputes as to the appropriate arrangements for residence and care.

The case of LBX v K, L and M (2013) provides the following list of factors regarded by the court as relevant information in the context of whether a person is able to decide where to live as well as whether and if so to what extent they should receive care.

In terms of residence, these are:

  • What the options are including the type of property and the facilities it has
  • The type of area where the property is based including any unusual risks presented by it
  • The difference between living somewhere and visiting it
  • What activities the person would be able to do if they moved to an area
  • Whether and if so how they would be able to see friends and family
  • The requirement to pay rent and bills (but not the cost or value for money or legal nature of the tenancy agreement)
  • General obligations of a tenancy and rules of compliance
  • Who they would be living with
  • The sort of care they would receive in broad terms
  • The risk other people may not want to see them if they choose to live in a particular place

Turning to care:

  • What areas they need support with
  • What sort of support they need
  • Who will provide it
  • What would happen if support was not provided or refused
  • That carers may not always treat them properly and the possibility and mechanics of making a complaint if they are not happy

On this basis, it is clearly unnecessary to overload the person with peripheral details or for them to be able to weigh up the minutia of every possible option.

Instead the information should be limited to the salient factors.

In so doing, it is anticipated many more people with brain or psychiatric injuries will be enabled to make their own decisions as to residence and care, thereby preserving more of their autonomy and increasing their independence.

A copy of the judgment can be accessed here.


Gemma Quinn is a senior associate in the catastrophic and large loss injury team based in Manchester and head of the Court of Protection subject matter group.