Outline of The Case

In this case the court considered the impact of depression on TC's capacity to make a decision as to whether to have an operation and whether had capacity to conduct litigation. She had previously consented to having an operation was found to lack capacity to do so as a result of becoming depressed. The full judgment is here.

I have also produced a YouTube video on this case which can be found here  and a Notion Page which can be found here

After considering a psychiatrist's report the Judge applied the Test for Determining Mental Capacity set out in Sections 2 and 3 of the Mental Capacity Act 2005

He held that TC had demonstrated that she was able to understand and retain information in regard to her diagnosis and the treatment interventions available. She was also able to communicate her decision. However, he held that as a result of her depressive illness, she was experiencing symptoms of hopelessness and she did not consider that she had a future. He stated that as was typical with severe depression TC was experiencing catastrophic thinking and that as a result, she was unable to weigh up the information she had been given in order to make a capacitous decision. He therefore concluded that TC lacked capacity to make decisions about her medical treatment.

The Judge went on to consider TC's capacity to instruct a solicitor and conduct these proceedings. He found that due to her limited motivation and sense of hopelessness she would be unable to identify an appropriate representative and weigh up the necessary information to provide instructions. Therefore, it was his view that as a consequence of her mental disorder TC was unable to weigh up the necessary information to conduct these proceedings and thus lacked capacity to do this.

I found out about this case from the 39 Essex Chambers Website where there is a very useful report on this case. This points out the how this case demonstrates the importance of promptly obtaining expert evidence, with the permission of the Court, in cases such as this, even when the application is urgent. The expert evidence on capacity, in particular, was able to explain to the court’s satisfaction how TC had gone from being able capacitously to decide upon her medical treatment to being in a position where she lacked that capacity. That is to say how, as a result of the catastrophic thinking associated with her severe depression she was unable to weigh up the information relevant to the decision in question.

The Wider Implications of The Case

This is an important decision beyond the issue of consenting to medical treatment. It has a wider application for all lawyers and advisers dealing with persons suffering from depression. In the area of housing law I have found that many clients who are facing eviction due to rent arrears were suffering from depression which may have caused or at least contributed to their difficulties in paying the rent, maintaining benefits claims needed to enable them to pay the rent, engaging with the landlords and getting help with their problems. The genuine difficulties faced by the tenants has often been overlooked and their rent problems have been attributed to laziness or some other deliberate decision not to comply with their obligation to pay their rent such that it is appropriate for them to lose their homes. If medical evidence can be obtained as in TC's case to show that the client is suffering from a level of depression such that they lack capacity they are likely to have a legal defence to a possession claim and grounds for applying to set aside or suspend a warrant for possession. The tenant's catastrophic thinking and sense of hopelessness may prevent them from weighing up the information needed to make decisions such as whether to respond to correspondence or challenge negative benefits decisions. Like TC these feelings may mean that they lack the motivation to take action themselves and to obtain assistance from others such as housing advisers or solicitors.

The defence to a claim for possession arises from the Equality Act 2010 which provides that adverse treatment of a person due to something arising from a disability which the landlord was aware of amounts to unlawful discrimination. Where a medical condition is sufficient to deprive someone of capacity to make a decision then it will usually also amount to a disability - see Definition of Disability. If it can be shown that a landlord is discriminating in this way the tenant is likely to have a full defence to the claim for possession.

Enforcement of a Possession Order which was made before the landlord was aware of the tenant's medical condition or before the tenant began to suffer from depression will amount to unlawful discrimination even if the application for the original Possession Order did not.

Where it can be established that the tenant lacked capacity and the landlord was aware of this when an earlier Possession Order was made then it may be possible to have that Order set aside on the basis that the Order was made in breach of The CPR 21 Rules Protected Parties which prevents Orders being made against persons lacking capacity (also known as Protected Parties) before a Litigation Friend has been appointed to act for them.

Where a landlord continues to take action against a tenant for reasons arising out of a disability such as depression then the tenant may also be entitled to counterclaim for substantial damages for the distress caused by the discrimination. See the County Court case of Poplar Harca v White (2015) (unreported) where a tenant was awarded £4,500.00 damages where a landlord had pursued possession action despite being aware of the tenant's disability.

For more information on such defences to possession claims based on disability see Equality Act 2010 Defence To Possession Claim.

The Test For Deciding Whether Someone Lacks Mental Capacity

If the Test for Determining Mental Capacity is applied to the issues of making decisions in relation to management a tenancy, managing a benefits claim and instructing a solicitor then it is likely that they will be found to lack capacity to make the decisions just as the person in this case lacked capacity to make decisions about medication. An impairment of the brain or mind giving rise to such a lack of capacity is very likely to amount to a disability for the purposes of 2010.

To apply the Test for Determining Mental Capacity in a case like this the following steps need to be taken

1. Carry out the Diagnostic Test and identify an impairment of the mind or brain which might give rise to a lack of capacity. In this case that was identified as the TC's depression which gave rise to catastrophic thinking
2. Carry out the Functional Test and determine whether the impairment is likely to prevent the person from making a decision for themselves. In this case the catastrophic thinking caused by TC's depression prevented her from being able to weigh up the information which she had been given so as to make a decision.

Further information on depression and its impact on capacity can be found in Understanding Depression - Harvard Medical Scool and More Than Sad: Depression Affects Your Ability To Think