In the recent Court of Protection case of Royal Borough of Greenwich v CDM  EWCOP 32, the court had to decide whether the assessment of capacity to make decisions about diabetic management should be one global macro-decision, embodying all of the micro-decisions required to be made when managing diabetes.
The case concerned a 64 year old woman (known throughout as CDM) who has a personality disorder and poorly controlled diabetes.
CDM had lived alone since 2014 following the death of her husband. Concerns arose regarding CDM’s health and the management of her diabetes when her condition deteriorated. CDM was discovered at home sat in vomit and faeces in 2017, and was subsequently taken to hospital and then to a nursing home. An independent psychiatrist provided a report in respect of CDM’s capacity, in which the psychiatrist determined that there would be an “inevitable variation” in CDM’s mental state due to fluctuations in her blood glucose, which stemmed from her poorly controlled diabetes, and due to her diagnosed personality disorder.
This case had previously been heard by Cohen J, in RB Greenwich v CDM  EWCOP 15, who concluded that “CDM had fluctuating capacity to decide as to the management of control of her diabetes particularly, as a result of her personality disorder, and that that aggravated her diabetes because it led to poor diabetic control and her making unwise decisions, and therefore her treatment and inability to cooperate with professionals”. Cohen J had instructed a second expert in order to determine any triggers which could cause CDM to lack capacity to make decisions regarding the management of her diabetes. The Official Solicitor (litigation friend for CDM in the proceedings) sought to have the decision reviewed by the Court of Appeal and permission to appeal was given relating to the issue of fluctuating capacity. The appeal was heard by Newton J.
Mental capacity is decision specific i.e. a person may have capacity to make one decision, but lack capacity to make a different decision. The ‘test’ to be applied when assessing a person’s a capacity is set out in Sections 2 and 3 of the Mental Capacity Act 2005. This includes a ‘functional test’, which states that a person is unable to make a decision if he is unable to (a) understand the information relevant to the decision (b) retain that information (c) use or weigh that information as part of the process of making the decision or (d) communicate his decision. This was the test to be applied when considering whether CDM had the capacity to manage her diabetes, but the issue in this case was whether the decision to be made in relation to management of diabetes should be considered as one ‘macro-decision’, or alternatively a series of ‘micro-decisions’.
Newton J, at paragraph 48 of the written judgement, stated that “I have reached very clear conclusions, both on the evidence and on the law, on the powerful experts’ analysis, which I adopt:
- on the assessment of capacity to make decisions about diabetes management, in all its health consequences, the matter is a global decision, arising from the inter dependence of diet; testing her blood glucose and ketone levels; administration of insulin; and, admission to hospital when necessary in the light of blood glucose levels. And
- that CDM lacks the capacity to make those decisions, and having regard to the enduring nature of her personality disorder which is lifelong and therefore unlikely to change.”
Newton J, at paragraph 49, stated that “I acknowledge, as do the experts, that there may be occasions when CDM has the capacity to make micro-decisions in respect of her diabetes and occasions when she does not, i.e. that her capacity does in fact fluctuate. However, if the court accepts the expert’s opinions, as I do, and approaches the matter on the basis of their conclusions, logically, legally and practically, it is a macro-decision, and CDM lacks capacity to take the macro-decision, the issue of fluctuating capacity simply does not arise.”
Newton J concluded his judgment by stating that CDM’s diabetes management is a global decision and is one that CDM does not have the capacity to decide. As a result, all decisions to be made in relating to the management of CDM’s diabetes must be made for her, in her best interests.
This judgment highlights the importance of steps being taken to assess a person’s capacity to make decisions about diabetic management, should there be a reason to believe that the individual lacks capacity due to a mental impairment, and the correct approach to assessing capacity to make decisions about diabetes management.
By Eleanor Roscoe, graduate paralegal