Re Thirumalesh – the Court of Appeal explains why the established view that the MCA contains a belief requirement is wrong in law

Hemachandran v Sudiksha Thirumalesh (deceased) and University Hospitals Birmingham NHSFT [2024]EWCA 896 is a landmark judgment given by King LJ with whom LJJ Singh and Baker agree. The successful appeal against the first instance decision that Sudiksha lacked capacity to make decisions about her medical treatment, including palliative care, was brought by her parents. That was because, tragically, Sudiksha died 35 days after the first instance decision of the late, greatly missed Mrs Justice Roberts who is praised, and not at all criticised, by the Court of Appeal. It seems likely that the case will become known as Re Sudiksha or Re Thirumalesh. (In a previous judgment ([2023] EWCOP 43), Peel J authorised publication of Sudiksha’s name).

The adjective “landmark” is justified for two reasons. First, the judgment clarifies the so-called ‘functional’ aspect of the statutory test used to determine whether a person over 16 years has the mental capacity to make a decision. Although the clarification is provided in the context of a decision about medical treatment, the ratio applies to the test for mental capacity in relation to all decisions.

Second, the judgment overturns what King LJ referred to as “an established legal approach to the relevance of a patient’s belief in their illness and prognosis”, which approach she finds to be “wrong and contrary to Court of Appeal authority” (para 10).

Of additional importance is the fact that the judgment (at para 140) endorses Macdonald J’s statement in North Bristol NHS Trust v R [2023] EWCOP 5, that the Mental Capacity Act 2005 does not require a formal diagnosis before an impairment or disturbance in the functioning of the mind or brain can be found. The functional aspect of the test for mental capacity is found in section 3(1) of the MCA 2005: a person is unable to make a decision for himself if he is unable to understand, retain, use and weigh information relevant to the decision, or communicate his decision.

The issue on appeal was whether, as the NHS Trust contended at first instance and the trial judge accepted, as a matter of law, a person’s ability to understand, use and weigh information relevant to a decision depends on that person believing that the information is reliable and true.

The widely accepted view that the functional test contains such a belief requirement stems from a trio of cases: Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290 (Thorpe J), Re MB (Medical Treatment) [1997] 2 FLR 426 (Butler-Sloss LJ), and A Local Authority v MM [2007] EWHC 2003 (Fam), known as Re MM in which Munby J (as he then was) said this at para 81:

“If one does not “believe” a particular piece of information then one does not, in truth, “comprehend” or “understand” it, nor can it be said that one is able to “use” or “weigh” it. In other words, the specific requirement of belief is subsumed in the more general requirements of understanding and of ability to use and weigh information.”

In her Court of Appeal judgment, King LJ explains that Munby J’s pronouncement that a belief requirement is subsumed in the requirements set out in the MCA 2005 was wrong and based on a misreading of Re MB:

“57. During the course of submissions, Mr Sachdeva, having heard the submissions of the other parties and in discussions with the Court as they looked together with him at Re C and at the use of the word may by Butler-Sloss LJ in Re MB, refined his submissions, so that his final position on behalf of the Trust was that:

“Where there is objectively verifiable medical consensus as to the consequences of not having medical treatment, if a person does not believe or accept that information to be true, it may be that they are unable to understand it and/or unable to weigh it for the purposes of the MCA.”

58. This approach dovetails with that of both the Official Solicitor and of MIND (Mr Quintavalle on behalf of the appellants, chose not to concentrate to any extent on this aspect of their grounds of appeal). The Official Solicitor submitted that a person who does not believe relevant information, whether it be factual or opinion, may lack capacity, but equally they may not. The meaning of each of the words “understand”, “use” and “weigh” is, she submits, different from the meaning of the word “believe.” The statutory language Miss Gollop submits is complete in meaning: there is no missing meaning, and no implicit or subsumed meaning that needs to be made explicit and no addition or embellishment is required. I agree.”

King LJ concluded that Sudiksha’s rejection of the doctors’ advice that she was at the end of her life and nucleoside therapy would not help her, her belief that she would exceed expectations, and her strong desire to access that therapy were all relevant to the contested issue of whether she was unable to understand, use and weigh information relevant to the medical treatment decisions before her, but were not determinative of that issue.

The appeal succeeded because, through no fault of her own and relying on Re MB, the first instance judge made an error of law and also gave inadequate reasons for not accepting the expert evidence on capacity, which, by the time of the final hearing, was all one way:

“138. Once one displaces an absolute requirement for “belief”, then, where a 19-year-old young woman, fully conscious and suffering no identifiable mental illness or loss of brain function and with the full support of her close knit family, refuses to accept that her death is imminent but says loud and clear to two psychiatrists that she wants to “die trying to live”, it will take a great deal to displace the principle of autonomy and the presumption of capacity, no matter how unwise her decision to eschew palliative care may have seemed to a more mature mind.

139. It follows that against that backdrop, the judge in my judgment, failed to give sufficient reasons for disagreeing with the unanimous view of the experts that Sudiksha had capacity to make decisions as to her medical treatment.”

In allowing the appeal and setting aside the High Court’s final declaration of incapacity, King LJ concluded that (para 142): “the presumption of capacity applied, and this remarkable young woman therefore had her wish to ‘die trying to live'”.

Katie Gollop KC and Olivia Kirkbride represented the Official Solicitor. You can read more about Katie’s Court of Protection practice here, and more about Olivia’s Court of Protection practice on her website profile.