Capacity, the Court and the Expert: Why “Relevant Information” Must Include Real-World Consequences

The Court of Protection judgment in London Borough of Camden v BW & Anor (Capacity Decisions; Reasons) [2026] EWCOP 26 (T3) is an important reminder that mental capacity assessments must be rooted in the person’s actual circumstances, not just in a generic understanding of the decision.

The case concerned BW, a 27-year-old woman with a complex presentation, including autism, a history of mental health detention, supported accommodation, periods of serious dysregulation, and vulnerability to exploitation.

The Court of Protection had to consider whether BW had capacity to make decisions about two specific matters:

1. whether to consent to psychotropic or depot medication; and

2. whether information about her should be shared with her sister, AW.

   
   

An independent expert, Dr Sheehan, had assessed BW as having capacity in both areas.

Senior Judge Hilder disagreed and found that BW lacked capacity in relation to both decisions. The local authority appealed, arguing that the judge had given inadequate reasons, particularly because she had departed from the expert evidence.

Mrs Justice Lieven dismissed the appeal.

The key issue: did the assessment consider the right consequences?

The central point in the judgment was not whether BW could say something about medication, side effects, anger, aggression, arrest, hospital or prison. She could. Nor was the issue whether Dr Sheehan had carried out a detailed assessment. He had.

The issue was whether the assessment had identified and explored all of the relevant information BW needed to understand and use or weigh in making the decision.

Under section 3(4) of the Mental Capacity Act 2005, relevant information includes information about the reasonably foreseeable consequences of deciding one way or another, or of failing to make the decision.

In BW’s case, the court found that one highly material consequence had been missed: if BW did not continue with the depot medication, there was a reasonably foreseeable risk that her aggression would increase, which in turn could lead to the breakdown of her current placement.

Senior Judge Hilder described this as information that was “wholly missing” from Dr Sheehan’s assessment. Mrs Justice Lieven agreed. At paragraph 64, she held that a reasonably foreseeable consequence of BW not taking the medication was that she would lose her current placement. At paragraph 65, she described that consequence as “obvious, direct and reasonably foreseeable”.

That mattered because the possible loss of the placement was not a minor or remote issue. Given BW’s history of homelessness, imprisonment and detention under the Mental Health Act, the loss of accommodation was potentially a serious and grave consequence.

The court is not bound by the expert

This case is also a useful reminder that the decision on capacity is ultimately for the court, not the expert.

Mrs Justice Lieven referred to the principle that the roles of the court and expert are distinct. Expert evidence may be very important, but the judge must make the final decision after considering all of the evidence.

At paragraph 75, the court stated:

“There is no doubt that the decision as to capacity is one for the Judge, and the Judge is fully entitled to depart from the capacity assessment, whoever it is undertaken by.”

This does not mean expert evidence can be ignored. Far from it. Where a judge disagrees with an expert, the judge must explain why.

But in this case, the explanation was clear: the expert had not considered a highly material matter, namely the likely impact of refusing medication on BW’s placement.

This is particularly important in COP3 mental capacity assessments and other court-facing capacity reports, where the assessment must be more than clinically detailed. It must answer the correct legal question.

The court was not substituting welfare for capacity. It was not saying that because medication was beneficial, BW therefore lacked capacity to refuse it. Rather, the court found that BW had not been assessed against the correct body of relevant information.

That distinction is crucial.

Unwise decisions are still allowed, but the person must be able to weigh the consequences

The Mental Capacity Act is clear that a person must not be treated as unable to make a decision merely because they make an unwise decision.

This principle is especially important in cases involving medical treatment, family relationships, contact, residence and care. People are entitled to make decisions that others consider risky, unusual or contrary to professional advice.

However, the right to make an unwise decision presupposes that the person has capacity to make that decision. That requires the person to understand, retain, use or weigh the relevant information, and communicate the decision.

In BW’s case, the relevant information included the likely effect of not taking medication on her behaviour, the risk of further aggression, and the possible loss of her placement. The concern was not simply that BW might refuse medication. The concern was that she was not able to understand or weigh a serious, foreseeable consequence of that refusal.

This is why capacity for health and welfare decisions must be assessed by reference to the person’s real-world care, treatment, accommodation, safeguarding and support arrangements.

Mrs Justice Lieven addressed this directly at paragraph 70, citing the well-known warning against allowing “the tail of welfare to wag the dog of capacity”. She concluded at paragraph 71 that there was nothing to suggest Senior Judge Hilder had confused an unwise decision with lack of capacity. The finding was based on BW’s inability to understand the reasonably foreseeable consequences of her decisions.

Information-sharing with family: a separate but connected decision

The second issue was whether BW had capacity to decide whether information should be shared with her sister, AW.

This is a particularly interesting part of the judgment because information-sharing decisions can sometimes be assessed too narrowly. The assessment may focus on privacy, confidentiality and the person’s wishes, without sufficiently exploring the practical consequences of excluding a family member or advocate from the flow of information.

In BW’s case, AW had played a significant role in advocating for her and supporting her. The court found that Dr Sheehan had not properly explored the consequences of AW not receiving information, particularly where BW’s care arrangements had to be made by others in her best interests.

At paragraph 68, Mrs Justice Lieven held that the same analysis applied to information-sharing. Dr Sheehan had not explored with BW the likely consequences of AW being unable to advocate on her behalf, nor the impact this could have on the provision of the care BW needed.

At paragraph 69, the court noted that BW’s family, and AW in particular, had been critical in ensuring BW received the care and support she needed and was entitled to. BW was clear that she did not want AW to be given information, but the judge was entitled to conclude that BW could not weigh the consequences of that decision.

This is an important point for practitioners. A person may be able to say, “I do not want my sister involved” or “I can speak for myself”. But the assessment must still consider whether the person can understand and weigh what may happen if that family member or advocate is excluded from information-sharing, particularly where the person already lacks capacity in relation to care, support or residence.

These issues also arise frequently in support for deputies and attorneys, where family members, attorneys, deputies and professionals may need to understand what information can be shared, why it matters, and how it affects the person’s care and protection.

No enhanced “reasons burden” because of the presumption of capacity

The local authority argued that because the Mental Capacity Act starts with the presumption of capacity, there was a heightened obligation on the judge to explain why BW lacked capacity, especially when the expert had reached the opposite conclusion.

Mrs Justice Lieven rejected that argument.

At paragraph 63, she held that the standard of reasons remains the same whatever the issue or where the burden lies. The reasons must be clear and intelligible, but there is no special enhanced standard simply because the court is finding that a person lacks capacity.

The court accepted that reasons must explain why the decision was reached, address the principal issues, and show why the judge departed from the expert evidence. But they do not have to be lengthy, nor do they have to recite every part of the evidence.

This is a practical and sensible approach. The court must give enough reasons to allow the parties to understand the decision.

But capacity judgments are not required to become lengthy academic exercises where the essential reasoning is already clear.

Practical lessons for mental capacity assessors

This judgment has several important lessons for anyone completing mental capacity assessments.

1. Identify the specific decision

Capacity is decision-specific and time-specific. The assessment must be clear about the exact decision under consideration. In this case, the relevant decisions were not simply “medication” and “family involvement”. They were decisions about depot psychotropic medication and information-sharing with AW in BW’s specific circumstances.

2. Identify the real-world relevant information

The assessor must identify the information relevant to this person, in this situation, at this time. Generic information is not enough.

For medication, this may include:

• the purpose of the medication;

• the expected benefits;

• the possible side effects;

• alternatives;

• what may happen if the medication is refused;

• whether refusal may affect care, support, accommodation, risk, relapse, admission or safeguarding.

  
  

For information-sharing, this may include:

• what information may be shared;

• who it may be shared with;

• why sharing is being considered;

• the benefits and risks of sharing;

• the consequences of not sharing;

• whether the person would lose practical support, advocacy or safeguarding input.

  
  

3. Explore reasonably foreseeable consequences

The key lesson from BW is that reasonably foreseeable consequences must not be treated as an afterthought. They are part of the statutory test.

The assessor does not need to explore every remote possibility. But where a consequence is obvious, direct, serious and grounded in the evidence, it must be addressed.

In this case, the possible loss of BW’s placement was not too remote. It was a direct consequence of the likely chain of events: refusal of medication, deterioration, increased aggression, and placement breakdown.

4. Do not focus only on what the person says they want

Wishes and feelings matter. They should be taken seriously. But capacity is not established simply because the person can express a clear preference.

The assessment must examine whether the person can understand and weigh the relevant information. A capacitous person can make a decision others consider unwise, but they must be able to engage with the salient consequences of that decision.

5. Be careful where care decisions and information-sharing overlap

Where a person lacks capacity in relation to care and support, but is said to have capacity to exclude a family member or advocate from information-sharing, the assessor should examine the relationship between those two domains carefully.

The person may still have capacity to make the information-sharing decision. But the assessment must address whether they understand and can weigh the practical impact of excluding someone who helps professionals understand their needs, risks, history and preferences.

6. Experts must address the statutory test, not just clinical presentation

An expert report may be detailed and clinically sophisticated, but it can still be flawed if it does not address the relevant legal question.

The Court of Protection is

concerned with the statutory test under the Mental Capacity Act 2005. That means the expert must identify the decision, the relevant information, the reasonably foreseeable consequences, the person’s functional ability to make the decision, and the causative nexus between any inability and the impairment or disturbance in the functioning of the mind or brain.

A robust mental capacity report must therefore explain not only what the person said, but how they engaged with the information that mattered to the actual decision.

Why this case matters

London Borough of Camden v BW is not a case that lowers the threshold for finding lack of capacity. Nor does it dilute the presumption of capacity. Instead, it reinforces a more precise point: capacity assessments must be properly anchored to the specific factual context.

The question is not:

“Can the person give some relevant answers?”

The better question is:

“Can the person understand and use or weigh the salient information, including the reasonably foreseeable consequences, of this decision in their actual circumstances?”

For practitioners, the judgment is a reminder to slow down at the stage of identifying relevant information. A capacity assessment can appear thorough, but if it misses a material consequence, its conclusion may be unsafe.

The decision also reminds us that courts will respect expert evidence, but they will not be bound by it.

Where an expert has not considered a central statutory factor, the court may reach a different conclusion.

In practice, this judgment should encourage assessors to ask more grounded questions:

• What is likely to happen if the person says yes?

• What is likely to happen if the person says no?

• Are any of those consequences serious or grave?

• Are those consequences specific to this person’s situation?

• Has the person actually been supported to understand and weigh them?

• Is any inability to understand or weigh those matters caused by an impairment or disturbance in the functioning of the mind or brain?

  
  

That is the discipline required by the Mental Capacity Act. This case shows why it matters.

If you need an independent, decision-specific mental capacity assessment service for a Court of Protection matter, health and welfare decision, information-sharing issue or complex professional dispute, Nellie Supports provides structured assessments across England and Wales.