In 2006 PC married NC whilst he was serving a 13-year term of imprisonment for serious sexual offences. He had always denied his guilt and so never received any sexual offenders’ treatment. She had always maintained that he was innocent and blamed the complainants – his previous wives – for framing him. It was not in dispute that, were the couple to resume cohabitation, he would pose a serious risk to her, although there was no evidence that serious harm had ever been suffered. Both had a unified wish to resume married life together and the local authority issued proceedings in anticipation of his release on licence. Whilst the central issue concerned the capacity of a married woman to decide whether or not she was going to live with her husband, the appeal raised more general issues relating to the character of decisions in respect of which capacity is to be assessed.
At first instance, Hedley J had accepted that the husband’s guilt was potentially a highly relevant factor to the capacity assessment. However, the issue was ‘not whether she is right in her rejection of his guilt, that is a classic and all too familiar unwise decision, but whether she was capable of the steps necessary to reach such a conclusion. Given her learning disability, her unwillingness to examine the issue of his guilt and her overwhelming desire to re-establish that relationship, and that that derives in significant part from her impairment, I accept that there may be evidence from which the court could conclude that she lacks capacity to decide on matters relating to her relationship with NC.’ His Lordship proceeded to analyse the capacity issue as follows:
"19. There has been considerable debate as to whether the issue of capacity to decide on contact should or should not be person specific, that is to say whether it should or should not in this case focus on NC. This is in part derived from the terms of section 17 of the Act. However, it seems to me that what the statute requires is the fixing of attention upon the actual decision in hand. It is the capacity to take a specific decision, or a decision of a specific nature, with which the Act is concerned. Sometimes that will most certainly be generic. Can this person make any decision as to residence or contact or care by reason of, for example, their dementia? Or does this person have any capacity to consent to sexual relations by reason of an impairment of mind which appears to withdraw all the usual restraints that are in place? Such generic assessments will often by necessary in order to devise effective protective measures for the benefit of the protected person, but it will not always be so. There will be cases, for example, in relation to medical treatment where the attention is centred not only on a specific treatment or action but on the specific circumstances prevailing at the time of the person whose decision making capacity is in question. The hysteric resisting treatment in the course of delivering a child is an example from my own experience. Accordingly, I see no reason why in the construction of the statute in any particular case the question of capacity should not arise in relation to an individual or in relation to specific decision making relating to a specific person. In my judgment, given the presumption of capacity in section 1(2) this may indeed be very necessary to prevent the powers of the Court of Protection, which can be both invasive and draconian, being defined or exercised more widely than is strictly necessary in each particular case.
20. It follows that in my judgment, rather than making a general finding about whether the question to be considered should or should not involve in it any particular individual, my task, as I understand it, is to articulate the question actually under discussion in the case and to apply the statutory capacity test to that decision. The question in this case surely is this: should PC take up married life with NC now that, in terms of imprisonment and licence, he is free to do so? It is a decision which any wife in her position would be required to take and it is a decision that does not admit of only one answer. Thus, the question of capacity is important. All the other issues raised, care, residence and contact, are peripheral, save insofar as they bear on the question of the resumption of the long interrupted cohabitation of PC and NC. Although that is a narrow issue it is, in my judgment, a seriously justiciable issue to which the court should give its proper attention and make a decision.
21. In coming to dealing with the question of capacity on that central question I start by acknowledging three things. The first is that PC must be taken to have had capacity to marry in 2006. Secondly, she must be taken to have capacity to understand the obligations of marriage. Thirdly, the presumption of capacity under section 1(2) must, on the evidence that I have heard, prevail in relation to all issues other than the resumption of cohabitation with NC and its implementation. Then I need to say that the question that I have posed is narrower and beyond the question of the obligations of marriage. Any woman, however conscious of those obligations, nevertheless in the circumstances of PC and NC, would have a fresh and particular decision to make as to which there is more than one available answer. In the end I have concluded on the evidence that PC does not have the capacity to make the identified decision. She is undoubtedly within section 2(1) requirements of impairment. Applying the section 3(1) test I am not satisfied that she is able to understand the potential risk that NC presents to her and that she is unable to weigh the information underpinning the potential risk so as to determine whether or not such a risk either exists or should be run, and should, therefore, be part of her decision to resume cohabitation. I am satisfied too that that significantly relates to the impairment in section 2(1), though I do accept that there is an element in it of an instinctive impatience simply to bring about the desired result whatever, which, if it stood alone, would simply be an unwise decision. Accordingly, I find that in relation to the decision as to whether to resume cohabitation with NC, PC lacks capacity so to decide and thus the jurisdiction of the Court of Protection is engaged in respect of that particular issue."
This line of reasoning was challenged by both husband and wife. On behalf of the wife, the Official Solicitor’s three primary grounds of appeal, as re-cast by the Court of Appeal, were:
- The judge wrongly identified the issue for determination as being whether PC had capacity to ‘resume married life’, rather than by reference to the established domains of care, contact and residence. As a result the judge conflated the relevant issues;
- The judge failed to give proper weight to the fact that PC and NC had contracted a valid marriage in 2006 and there had been no relevant change in circumstances since that time to bring the validity of the marriage into question;
- In any event, the judge wrongly applied a person-specific, rather than an act-specific, test in determining capacity. In particular:
- As a matter of law a ‘decision’ to which MCA 2005, Part 1 applies can only be act-specific and can never be person-specific.
- If, contrary to A, it is permissible for some ‘decisions’ to be person-specific, the decision of a wife to go to live with her husband is not one of those decisions.
- If, contrary to A and B, it is permissible for the decision of a wife to go to live with her husband to be person-specific, where, as here, the wife has had and maintains capacity to marry the outcome of the test for capacity to marry will be the same as that for the capacity to decide to cohabit.
Never person-specific? (Ground (iii) A)
The Court of Appeal began with this third ground as it had been the focus of the submissions. There was ‘clear and settled authority that capacity to marry is act, rather than person, specific’; and ‘some relatively solid ground for holding that the same is also true with respect to consent to sexual relations’ (paragraph 21). McFarlane LJ accepted that ‘capacity to marry is to be assessed in general and as a matter of principle, and not by reference to any particular prospective marriage’ (paragraph 23). It was status, not spouse, specific. In relation to consent to sexual relations, the judgment noted the difference of judicial opinion, principally between Munby J (as he then was) in Local Authority X v MM  EWHC 2003 (Fam) and Baroness Hale in R v Cooper  1 WLR 1786. In the former it was held at paragraph 86:
"The question [capacity to consent to sexual relations] is issue specific, both in the general sense and, as I have already pointed out, in the sense that capacity has to be assessed in relation to the particular kind of sexual activity in question. But capacity to consent to sexual relations is, in my judgment, a question directed to the nature of the activity rather than to the identity of the sexual partner."
By contrast in Cooper it was held at paragraph 27:
"My Lords, it is difficult to think of an activity which is more person and situation specific than sexual relations. One does not consent to sex in general. One consents to this act of sex with this person at this time and in this place. Autonomy entails the freedom and the capacity to make a choice of whether or not to do so."
However, the Court of Appeal did not consider it necessary to resolve the matter because:
"27… Whilst consent to sexual relations forms part of the wider decision by a spouse whether or not to take up full cohabitation with her husband, the two decisions are not precisely the same. The fact that one may be act-specific does not mean that the other, wider, decision cannot be person-specific. In any event, for the purposes of this part of the Official Solicitor’s argument it is sufficient that one major category of decision, namely capacity to marry, is act, rather than person, specific."
After summarising the submissions of the parties, the Court concluded that the course adopted by Hedley J at paragraph 19 had been correct. Thus:
"35. … The determination of capacity under MCA 2005, Part 1 is decision specific. Some decisions, for example agreeing to marry or consenting to divorce, are status or act specific. Some other decisions, for example whether P should have contact with a particular individual, may be person specific. But all decisions, whatever their nature, fall to be evaluated within the straightforward and clear structure of MCA 2005, ss 1 to 3 which requires the court to have regard to ‘a matter’ requiring ‘a decision’. There is neither need nor justification for the plain words of the statute to be embellished. I do not agree with the Official Solicitor’s submission that absurd consequences flow from a failure to adopt either an act-specific or a person-specific approach to each category of decision that may fall for consideration. To the contrary, I endorse Mr Hallin’s argument to the effect that removing the specific factual context from some decisions leaves nothing for the evaluation of capacity to bite upon. The MCA 2005 itself makes a distinction between some decisions (set out in s 27) which as a category are exempt from the court’s welfare jurisdiction once the relevant incapacity is established (for example consent to marriage, sexual relations or divorce) and other decisions (set out in s 17) which are intended, for example, to relate to a ‘specified person’ or specific medical treatments."
The same regime and structure for evaluating capacity established in MCA 2005 ss 1 to 3 was to be applied to each and every individual decision which fell for consideration (paragraph 36). McFarlane LJ went on to hold:
"37. The central provisions of the MCA 2005 have been widely welcomed as an example of plain and clear statutory language. I would therefore deprecate any attempt to add any embellishment or gloss to the statutory wording unless to do so is plainly necessary. In this context the reference within the Official Solicitor’s argument to ‘domains’ of decision-making is unwelcome and unnecessary. The court is charged, in relation to ‘a matter’, with evaluating an individual’s capacity ‘to make a decision for himself in relation to the matter’ (s 2(1)); no need has been identified for grouping categories of ‘matter’ or ‘decision’ into domains, save where to do so has been established by common law or by the express terms of the MCA 2005 (for example, capacity to marry). It follows that the Official Solicitor’s ground (i), which relies upon evaluation with respect to relevant ‘domains’, and which was not pursued during oral argument, cannot succeed.
38. I do not therefore accept Mr Bowen’s submission that there is no basis for the court to adopt an act specific approach to the question of capacity to marry but to personalise the question of whether there is capacity to decide whether or not to have contact with, or reside with, a particular spouse. One, capacity to marry, involves understanding matters of status, obligation and rights, the other, contact and residence, may well be grounded in a specific factual context. The process of evaluation of the capacity to make the decision must be the same, but the factors to be taken into account will differ. As I have already observed, this distinction is expressly reflected in MCA 2005, s 17 and s 27 and, indeed, it is common place for the Court of Protection to be asked, for example in a case of dementia, to regulate the contact that one spouse may have with another.
39. It follows that I accept Mr Hallin’s submission that the reference in MCA 2005, s 3(1)(a) to the ability to ‘understand the information relevant to the decision’ in this particular case must include reference to information specifically relevant to NC in the light of his conviction and its potential impact on the decision before the court."
Living with husband not person-specific? (Ground (iii) B)
Having rejected any act-specific or person-specific distinction, other than those established by common law and/or expressly provided for in the MCA 2005, his Lordship held that the decision of a wife to go to live with her husband was ‘the matter’ in relation to which the court must determine the issue of capacity. The information relevant to that decision ‘must include that which is specifically relevant to the particular wife and the particular husband’ and so this ground of appeal was similarly rejected (paragraph 41).
Marriage and cohabitation? (Ground (iii) C)
The Court accepted evaluating capacity to marry and to cohabit will involve consideration of very closely related factors and ‘it may be impossible for the court to come to contrary conclusions on these two issues’. The statutory test was the same for both but it was not necessary on this occasion to determine whether, as a matter of law, it was permissible to come to contrary conclusions (paragraphs 42-43).
Impact of capacity to marry and the causative nexus? (Ground (ii) plus oral submissions)
Having found that she had maintained capacity to marry, it was contended on behalf of PC that Hedley J had failed to identify why she lacked capacity to cohabit. Importantly, it was also submitted that the finding that her inability to make the decision to cohabit was ‘referable’ to or ‘significantly relates’ to her learning disability fell short of finding that the inability was ‘because of’ her disability as required by MCA s 2(1).
Rejecting the ‘outcome’ approach to capacity assessments, the Court held:
"53. … There may be many women who are seen to be in relationships with men regarded by professionals as predatory sexual offenders. The Court of Protection does not have jurisdiction to act to ‘protect’ these women if they do not lack the mental capacity to decide whether or not to be, or continue to be, in such a relationship. The individual’s decision may be said to be ‘against the better judgment’ of the woman concerned, but the point is that, unless they lack mental capacity to make that judgment, it is against their better judgment. It is a judgment that they are entitled to make. The statute respects their autonomy so to decide and the Court of Protection has no jurisdiction to intervene.
54. Mr Bowen correctly submits that there is a space between an unwise decision and one which an individual does not have the mental capacity to take and he powerfully argues that it is important to respect that space, and to ensure that it is preserved, for it is within that space that an individual’s autonomy operates."
McFarlane LJ observed that MCA ss 2 and 3 did not establish a series of additional, free-standing tests of capacity. Rather, s 2(1) was the single test, interpreted by applying the more detailed description given around it in ss 2 and 3. Hedley J was said to have considered them as separate, albeit related, tests rather than affording central prominence to s 2(1).
"58. … There is, however, a danger in structuring the decision by looking to s 2(1) primarily as requiring a finding of mental impairment and nothing more and in considering s 2(1) first before then going on to look at s 3(1) as requiring a finding of inability to make a decision. The danger is that the strength of the causative nexus between mental impairment and inability to decide is watered down. That sequence - ‘mental impairment’ and then ‘inability to make a decision’ - is the reverse of that in s 2(1) – ‘unable to make a decision … because of an impairment of, or a disturbance in the functioning of, the mind or brain’ [emphasis added]. The danger in using s 2(1) simply to collect the mental health element is that the key words ‘because of’ in s 2(1) may lose their prominence and be replaced by words such as those deployed by Hedley J: ‘referable to’ or ‘significantly relates to’.
59. Approaching the issue in the case in the sequence set out in s 2(1), the first question is whether PC is ‘unable to make a decision for herself in relation to the matter’, the matter being re-establishing cohabitation with NC now that he is her husband and now that he is has regained his liberty. In this regard the fact that PC has capacity in all other areas of her life (save for litigation) and, in particular, has capacity to marry, is very significant. Hedley J’s findings [paragraph 21] that PC is unable to understand the potential risk that NC presents and is unable to weigh up the relevant information [the factors in MCA 2005, s 3(1)(a) and (c)] are therefore distinct and apart from her capacity to undertake these tasks in relation to all other matters that fall for decision, including marriage itself. Against that background it was, in my view, necessary for the judge to spell out why he came to these conclusions, notwithstanding PC’s capacity generally to make her own decisions. This the judge did not do. This omission is perhaps understandable as, in reality, the evidential basis for such a distinction had not been established."
Any finding that PC had capacity to marry but not to decide to perform the terms of the marriage contract required clear and cogent evidence which was found to be lacking. The finding that she was unable to make that decision was held to be simply not open to the judge and his conclusion was not sustainable. On that basis, the appeal was allowed:
"60. In the light of the finding that I have just made, the assessment of capacity under s 2(1) falls at the first of the two component parts. Insofar as the second part, the mental health element, is concerned, I have already questioned whether Hedley J’s findings go so far as to hold that the inability to decide is ‘because of’ PC’s compromised mental ability. In this regard the need to delineate why and how her mental impairment is insufficient to rob her of capacity in all other fields, yet is sufficient to be the cause of her asserted inability to decide to go to live with her husband is on all fours with the need for such clarity with regard to the first limb of s 2(1). For the reasons that I have already given, the evidence in the case is insufficient for this task and the judge’s findings on this limb must also fall away."
Lewison LJ delivered a short concurring judgment, noting:
"63. Thus in 2006 PC had the capacity to enter into a contract the essence of which was an agreement to live together with her husband. If she had the capacity to make that promise, she must then have had the capacity to decide to keep her promise. There is no finding of any deterioration in her mental capacity since then. Nor has there been any relevant change of circumstances, because at the date of the marriage NC had already been convicted and imprisoned.
64. I well understand that all the responsible professionals take the view that it would be extremely unwise for PC to cohabit with her husband. But adult autonomy is such that people are free to make unwise decisions, provided that they have the capacity to decide. Like McFarlane LJ I do not consider that there was a solid evidential foundation on which the judge’s decision can rest. We must leave PC free to make her own decision, and hope that everything turns out well in the end."
Richards LJ agreed with both judgments.
This is a significant judgment for a number of reasons. There is now a clear statement of law that, unless the common law and/or the MCA expressly say otherwise, there is to be no act- versus person- specific distinction in the evaluation of someone’s mental capacity. Rather, capacity is
decision-specific and whether the relevant information relates to an act or person depends upon the character of that decision. If the decision is whether a wife is to live with her husband, the relevant information must include that which is specifically relevant to that particular wife and that particular husband. Focusing the capacity inquiry on ‘the matter’ at the material time, rather than assessing the person’s decisional capability in some abstract vacuum, devoid of circumstance, is welcomed. It represents a more fact-sensitive approach which, in our view, reflects the philosophy behind the MCA.
Whether a person decides ‘to marry’ in general – as opposed to deciding ‘to marry person X’ – was considered to be settled authority, although we would not be surprised if the matter is revisited in the future. Although the Court of Appeal’s reluctance to settle the capacity test for consent to sexual relations is entirely understandable, given the facts of the appeal, it was perhaps a missed opportunity to resolve the judicial divergence on the issue. For the criminal law has doubted the correctness of the civil law and even judgments within the civil law appear to be irreconcilable. Indeed, it has been argued elsewhere that the analogy with marriage is not faultless, that sexual relations necessarily involve contact – the relevant information for which includes the other person – and that Baroness Hale’s approach is to be preferred: see ‘The opacity of sexual capacity’ (2012) Elder Law Journal 352.
Distinguishing the s 27 decisions from other decisions when determining the proper approach to be taken when assessing capacity is interesting. Section 27 contains a category of excluded decisions. It is welfare terrain that is excluded from best interests decision-making when the person is found to lack capacity to make those particular decisions. The rationale for not permitting a best interests decision is either because the decision is so personal to the individual or because the matter is governed by other legislation. Section 28 also excludes the best interests decision-makers from matters governed by Part 4 of the Mental Health Act 1983 and, by virtue of s 29, they cannot make a decision on the incapacitated person’s behalf in respect of voting, at an election for any public office or at a referendum. Whether these decisions are excluded from the realm of best interests because the test for assessing their capacity is act-specific rather than person-specific is, however, open to doubt.
A minor, but perhaps important, point is that at paragraph 29, the Court of Appeal accepted as correct that "a different level of capacity may be required depending upon the nature of the decision being taken, for example there is a difference between deciding to go to a foreign country for a short holiday or deciding to emigrate". We would suggest that the level of capacity is the same for both decisions; that is, the capacity assumption can only be disproved on the balance of probabilities. Rather, the difference between them is that they have different relevant information and different reasonably foreseeable consequences.
Finally, and very interestingly, the Court of Appeal’s approach to applying the statutory capacity test differs to that in the Code of Practice to the MCA 2005 by re-ordering the stages of the capacity assessment. The Code explicitly states that the diagnostic question is ‘stage 1’ and the functional question is ‘stage 2’ (pages 44-45). This represents the orthodox approach to assessing capacity. However, the Court has now held that this sequence is the reverse of that in s 2 (‘unable to make a decision … because of an impairment…’). Assessors must now evaluate the (in)ability to decide and then consider whether this is because of an impairment. In our opinion, the Court’s approach sits comfortably with the scheme of the Act. In its 1995 report, the Law Commission had concluded that having a diagnostic hurdle first would ensure that the capacity test was stringent enough not to catch large numbers of people who made unusual or unwise decisions (paragraph 3.8). However, it might be argued that focusing on the functional aspect first and any impairment second is less prejudicial and more UNCRPD friendly.
The presence or absence of the causative nexus is clearly significant as this case demonstrates: Hedley J was satisfied of the link between PC’s impairment and the inability and concluded she lacked capacity whereas the Court of Appeal was not so satisfied and concluded that she therefore had capacity. That the impairment is ‘referable to’ or ‘significantly relates to’ the inability to decide was too loose a test for causation: the Act says it must be ‘because of’. Does this mean ‘to the exclusion of all other possible reasons’? If, for example, the person cannot use and weigh the risks posed to them by their partner because (a) of their impairment and (b) undue influence, will they now have capacity for MCA purposes? The more exacting the test for capacity becomes, perhaps the more public authorities may turn towards the inherent jurisdiction to protect the vulnerable. Given the significance of this decision, we would particularly welcome the views of our readers.