Capacity – Contact

Summary

This case concerned a 48 year old woman with mild learning disabilities called PC. She lived independently in the community, and had previously formed a relationship with NC. NC was then convicted and imprisoned for sexual offences. While he was in prison, PC and NC married. PC did not accept that NC was guilty of the offences for which he was convicted and wanted him to live with her on his release. As NC’s release date approached, the local authority applied to the court for a declaration that it was in PC’s best interests that she resumed her married life with NC when he was released from prison, on the basis that the risk he posed to her was outweighed by the likely distress that would be caused were they to be prevented from continuing their relationship. The court was asked to determine whether PC had capacity to decide to have contact with NC and to live with him, and if she did not, whether it was in her best interests to resume her married life with him.

Hedley J was confronted with legal submissions as to whether a decision about contact should be viewed as person-specific or not – perhaps PC lacked capacity to decide whether to spend time with NC, but had capacity to make decisions about contact with other people. Hedley J set out his approach to the issue in the following way:

"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 be 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 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 only of 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."

Applying that approach, the court concluded that PC lacked capacity to make the relevant decision. Because of her mental impairment, she was "unable to weigh the information underpinning that 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."

PC’s social worker considered that, notwithstanding the risks that NC posed to PC in light of his offending history, it was in PC’s best interests for them to resume their married life. The alternative, of restraining PC from seeing NC, would have been seriously distressing for PC.

The court agreed, observing that it would be impractical and effectively unenforceable because of PC’s strongly held wishes. Hedley J expressed the view that "faithfulness to the policy behind section 4(4), and potentially behind section 4(6), is that it may be necessary from time to time to leave open to the protected person the option of taking an unwise decision which others, who are fully capacitous in her position, may themselves have taken."

Comment

This is an illuminating and instructive judgment which, in our view sets out in clear terms the correct approach to the assessment of capacity under the MCA. Capacity is decision-specific, not issue-specific, situation-specific or person-specific, although factors such as the situation in which a decision falls to be made, and the identity of people involved in the decision may well be relevant. It must be correct that a person could have capacity to decide to see A but not B where the information relevant to each decision is different because of the different risks posed by A and B, provided that the reason why the person cannot understand or weigh that information is their mental impairment.

The acceptance by the court that it can be in P’s best interests for an unwise or risky decision to be made is similarly welcome, and could usefully be applied to decisions about the return home of elderly people whose physical care needs would be better met in a residential setting, but who have a strong desire to live in their own homes.