Lauren Day

Partner, Solicitor & Head of Dispute Resolution

DATE PUBLISHED: 10 Mar 2016 LAST UPDATED: 27 Jun 2022

What effect can mental illness have on legal capacity?

A recent Court of Protection decision removed the assumption that those who suffer from poor mental health must also lack capacity to make important legal decisions:

It is a sad fact that:

  • 1 in 10 children suffer from mental health problems
  • 1 in 4 people suffer from mental health problems
  • 9 out of every 10 prisoners suffer from a mental disorder
  • 400 out of every 100,000 people in the UK have self harmed

Although the stigma attached to mental illness has reduced it is unfortunately still present in society today. Many of us have been guilty of making the assumption that those who are mentally ill do not have the ability to make important legal decisions affecting their health. This week is Mental Health Awareness Week (12th à 18th May) and the Mental Health Foundation will be raising awareness of mental disorders and how we could all potentially be affected by a mental disorder at some point in our lives.

Do those suffering from mental illness have the ability to make important legal decisions?

The Court of Protection recently considered whether or not those who are mentally ill should have the ability to make important legal decisions, in particular, whether or not a paranoid schizophrenic had the capacity to consent to major surgery which could potentially save her life.

The judge declared that “The freedom to choose for oneself is a part of what it means to be a human being” and explained that incapacity cannot be presumed from isolated instances of unconventional behaviour. This is a refreshing perspective on mental health and provides those suffering from poor mental health with the reassurance that their right to make decisions is not automatically taken away from them. Each case will be decided on its own facts and this is in no way a rule that all people suffering from mental illnesses have capacity, rather, it was decided that what is required to have capacity is a broad and “general understanding of the kind that is expected from the population at large”.

It is an important decision particularly in light of the recent increase in the impact of mental health. Those who suffer from mental illnesses will have the ability to make these critical decisions providing they have this vital general understanding and are able to weigh up the positives with the negatives and make a decision.

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