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Court of Appeal give guidance on assessing capacity

Our People - Maria Nicholas
10 May, 2013

A Court of Appeal judgment handed down on 1 May 2013 has clarified that capacity is decision specific, but in considering the relevant information this must include information specifically relevant to the people involved in the matter at hand.

We previously commented on the High Court decision, in November 2012. This case concerned a woman, PC, who married NC whilst he was serving a 13 year prison sentence for sexual offences. PC has a learning disability.

PC had always maintained that she believed NC to be innocent. On NC nearing his release from prison, the question arose as to whether PC had capacity to live with NC, and if she lacked capacity, would this be in her best interests?

In the High Court, Mr Justice Hedley had decided that the question to be asked was whether PC had capacity to make a decision about taking up married life with NC, not generally, and he found that PC lacked this capacity.

The decision was appealed by PC, through her litigation friend the Official Solicitor, and by NC.

PC’s appeal was based on the fact that the Judge should have considered issues of her residence and contact, rather than the more general issue of “resuming married life”; that he disregard the fact that PC and NC had entered into a valid marriage in 2006 and there was no evidence since then to question the validity of the marriage; and that he found the capacity test to be person specific, when it should be act specific in accordance with the Mental Capacity Act 2005.

The Court of Appeal in PC agreed that Justice Hedley’s approach to the situation had been correct in that it was right to look at whether PC had capacity to have contact or reside with NC, not whether she had capacity regarding contact and residence with others generally.

It was said that in order to assess whether or not PC had capacity to make this decision, consideration had to be given as to whether she could understand the information relevant to the decision, and that had to include information specifically about NC. The Court found that the specific factual context of the situation had to be considered.

However, the Court of Appeal said that when assessing capacity, firstly it should be determined if a person is unable to make a decision. If so, you should then consider whether that is because they suffer an impairment of, or a disturbance in the functioning of, the mind or brain. This is different to the test in the Mental Capacity Act 2005 which sets out that first it should be determined if there is an impairment, and if so then consider if the person is unable to make the decision. The Court’s approach introduces a causation element; the person must be unable to make the decision in question because of the impairment they suffer from.

Applying this test, the Court of Appeal found that PC did have capacity to decide to live with NC and engage in married life with him, however unwise a decision this may seem to some.

The effect of this “new test” will remain to be seen. This could open up the issue of capacity and best interests decision-making to more people, not only to those suffering an impairment of the mind. Alternatively, it may be seen as introducing a higher threshold, which will lead to fewer people being considered as lacking capacity to make their own decisions.

Previous cases have decided that capacity to marry and capacity to enter into sexual relations are act or issue specific, but not person specific, i.e. a person has to have capacity to marry/engage in sexual relations generally, they are not assessed as to whether or not they have capacity to marry/engage in sexual activity with a particular person. This plainly does not accord with looking at contact and residence as a person-specific issue.

Some may interpret this judgment as making it necessary to always consider the specific factual context of a situation, and seek to argue this in relation to marriage or sexual relations. It may well be that this issue is raised again in the not too distant future.

Certainly in issues of residence and contact, whether that be a decision to move to a care home, or having contact with family members, it will be appropriate to consider the specific facts and circumstances when assessing if a person has capacity to make that decision.

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Head of Court of Protection
Maria Nicholas is a Solicitor and Director at GN Law, and the Head of the Court of Protection and Community Care Departments. Maria advises on issues of mental capacity, best interests, deprivation of liberty and all aspects of community care law.

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