Key Facts
- •Sudiksha Thirumalesh (19) died from a rare mitochondrial disorder (RRM2B).
- •The Court of Protection declared Sudiksha lacked capacity to make decisions about medical treatment, including palliative care.
- •Sudiksha, while in multi-organ failure, was conscious and wanted experimental treatment abroad.
- •Her parents appealed the incapacity declaration after her death.
- •The appeal concerned Sudiksha's capacity to decide on medical treatment, not her capacity to litigate.
- •Expert opinions were divided initially, but ultimately converged on Sudiksha having capacity.
Legal Principles
Presumption of capacity unless lack of capacity is established.
Mental Capacity Act 2005 (MCA), section 1(2)
A person is not treated as unable to make a decision merely because they make an unwise decision.
MCA, section 1(4)
Capacity assessment must avoid basing judgment on whether a decision is good or bad.
Heart of England NHS Foundation Trust v JB [2014] EWHC 342 (COP)
Lack of capacity cannot be established merely by reference to age or appearance.
MCA, section 2(3)(a) and (b)
Two-stage test for capacity: (1) Functional test (ability to understand, retain, use, and weigh information; communicate decision); (2) Diagnostic test (inability to make decision because of impairment of mind).
MCA, sections 2 and 3; A Local Authority v JB [2021] UKSC 52
Belief in information is not a necessary condition for understanding or weighing information in the functional test.
Court of Appeal judgment in this case
When disagreeing with expert opinion, judges must provide material basis and reasons for disagreement.
AB v BG & Ors [2009] EWCA Civ 10
Outcomes
Appeal allowed; declaration of incapacity set aside.
The judge erred in her application of the functional test by requiring belief in medical information as a necessary component of understanding, and insufficiently justified her departure from unanimous expert opinion that Sudiksha had capacity.