Mental capacity

Mental capacity is the ability to perform a specific juristic act by understanding and making a decision to do something that has legal consequences, such as make a Will, a power of attorney or a gift, or to provide consent for something. Mental incapacity is the inability to do something or to provide consent for something by reason of a mental disorder or disability. Lack of mental capacity is not always constant; it may fluctuate. It will also vary according to the function that requires the decision or consent and, for this reason, mental capacity is referred to as being ‘function specific’.

Lack of capacity must not be confused with eccentricity—everyone is entitled to make decisions that to others may seem odd. The autonomy to make a decision has to be tempered by an understanding that some people do not have the capability to understand the decision-making process. Generally, it is assumed that a person has capacity to make their own decisions, unless proven otherwise, however, where there are concerns about an individual’s capacity, a prudent practitioner should investigate further.

The Mental Capacity Act 2005 (

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Local Government weekly highlights—22 May 2025

This week's edition of Local Government weekly highlights includes coverage of the Supreme Court judgment in Darwall v Dartmoor National Park Authority, confirming that section 10(1) of Dartmoor Commons Act confers a public right of access which extends to wild camping as a form of open-air recreation plus expert analysis of Vanhove v SSE and TRA, in which the High Court outlined the correct approach to be taken when considering an appeal against teaching prohibition orders; RP v Barnsley MDC, in which during an EHC Plan appeal, a bundle pagination error amounted to a procedural irregularity and error of law; the CA case of J v Bath and North East Somerset Council on the necessity of a DOLs order where all parties with parental responsibility consent; Tesco v SMBC, which considered the interpretation of the sequential test in retail planning; and Greenfields (IOW) Ltd v Isle of Wight Council, finding that failure to publish a section 106 agreement could put planning permission at risk. Case reports include R (Siderise Insulation Ltd) v The Mayor and Burgesses of the Royal Borough of Kensington and Chelsea, in which the court granted permission for a judicial review of the LA’s decision to prohibit Siderise products in its construction projects based on an arguable inconsistency with PCR 2015; R (Stoke Mandeville Parish Council) v Buckinghamshire Council, in which the court quashed the LA’s decision granting planning permission for a residential development, finding that the LA misinterpreted the Vale of Aylesbury Local Plan Policy on loss of existing sports and recreation facilities; Ealing LBC v The Father, in which the court determined the best outcome for a child under a special guardianship order combined with a rare, co-existing care order to the LA; and Mayor and Commonality and Citizens of The City of London v 48th Street Holding Ltd, in which a debt claim brought by the City of London to recover unpaid non-domestic rates and for declaratory relief was dismissed. The weekly highlights also includes further updates on Public procurement, Education, Social care, Planning, Children’s social care, Governance, Pensions, Social housing, Licensing and Environmental law and climate change.

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