The Mental Capacity Act – assessing capacity to decide on contact

The Court of Appeal has considered the approach to take when assessing a wife’s capacity to decide to live with her husband on his release from prison. Lee Parkhill looks at the judgment.

The case of PC & Another v City of York Council [2013] EWCA 478 concerned a woman, PC, who was 48 years old at the time of the Court of Protection’s judgment. PC had been diagnosed as having ‘mild’ learning difficulties. Some years earlier PC had entered into a relationship with a man, NC, and began to cohabit with him.

In November 2002 NC was arrested and then convicted for offences of serious sexual assault. The offences did not relate to PC. NC was sentenced to 13 years in prison. PC married NC in 2006 while he was still serving his prison sentence. In 2011 NC was released on licence and the local authority issued proceedings in the Court of Protection in anticipation of NC’s release from prison.

At first instance, before Hedley J the issue for determination was whether NC and PC should have contact and whether they should live together. It was accepted that PC had had capacity to enter into the marriage with NC and retained capacity in respect of the marriage.

The decision at first instance

At first instance Hedley J observed that the task of assessing capacity under the Mental Capacity Act is decision specific. The judge said that on occasions the decision in question might be generic but on other occasions the decision in respect of which capacity must be assessed will be very specific, e.g. where a particular medical procedure is proposed. Hedley J concluded that the question he needed to consider in this case was whether PC had capacity to decide to resume living with NC; he was not considering PC’s capacity to make decisions about contact, in general terms, with unspecified people.

Hedley J concluded that PC lacked capacity to decide on contact and cohabitation with NC and decided that it was in her best interests to resume cohabitation under a scheme of monitoring put in place by the local authority.

The appeal

PC, represented by the Official Solicitor, sought to challenge Hedley J’s decision on a number of grounds. One of the issues considered by the Court of Appeal was the nature of the assessment of PC’s capacity to decide on the issue of contact and cohabitation with NC. In short, the question was whether the assessment of PC’s capacity to decide on this issue should be an assessment of her capacity to reach a decision on the matter of contact in general, or whether the assessment should be person specific and consider her capacity to decide about contact with NC.

The Court of Appeal acknowledged that the test of capacity to marry is act, and not person, specific i.e. the test is whether P has capacity to marry, not whether they have capacity to decide to marry a particular person. The same is also true of the test for capacity to enter into sexual relations where the test is of capacity to engage in the particular activity, not to engage in activity with a particular partner. PC argued that the same, act specific approach, should be taken when considering capacity to cohabit with a spouse.

However the Court of Appeal rejected PC’s submissions on this point and approved of the approach taken by Hedley J. McFarlane LJ, at 35, said: "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'."

McFarlane LJ also endorsed submissions made by counsel for the local authority that removing the specific factual context from some decisions leaves nothing for the evaluation of capacity to bite upon.

However, the Court of Appeal went on to set aside Hedley J’s decision that PC lacked capacity to decide on cohabitation with NC. The Court of Appeal concluded that there was insufficient evidence upon which to base a conclusion that PC lacked capacity on that issue. McFarlane LJ stressed the importance of the fact that PC had in 2006 (and was considered to still have) sufficient capacity to enter into a marriage. PC’s capacity in respect of the marriage, together with the fact that she had capacity in respect of most other areas of her life (save for the conduct of litigation) was "very significant" when approaching the question of whether PC has capacity to cohabit with NC.

At paragraph 59 McFarlane LJ said: "If PC has capacity to marry she must be taken to have capacity to decide to perform the terms of the marriage contract. Any finding to the contrary required clear and cogent evidence. Such evidence was lacking in the present case and the finding that PC was unable to make this decision was simply not open to the judge."

As the decision that PC lacked capacity was set aside it follows that the Court of Protection has no jurisdiction and so there could be no question of imposing the monitoring arrangements which Hedley J. had ordered. As Lewison LJ said: "We must leave PC free to make her own decision, and hope that everything turns out well in the end."

Different decisions about capacity to marry and capacity to cohabit?

The Court of Appeal clearly attributed significant weight to the fact that PC had capacity to marry. McFarlane LJ observed that assessing capacity to marry and capacity to cohabit with a particular spouse would involve consideration of factors which are very closely related. McFarlane LJ added that on the facts of any given case it "may be impossible for the court to come to contrary conclusions" in respect of capacity to marry and capacity to cohabit with a spouse.

McFarlane LJ went on to observe that, aside from the evidential obstacles to reaching contrary conclusions on these matters there is a question as to whether, as a matter of law, contrary conclusions are possible. However, in light of the conclusion reached in respect of the evidence about PC’s capacity the Court of Appeal did not have to resolve that legal question in this case.

The Court of Appeal’s judgment in this case has helpfully clarified the approach to take when assessing capacity in respect of contact with particular individuals. Cases usually come to the attention of professionals, and thereafter the Court, because of concerns about contact with particular people.

Therefore many will welcome the Court of Appeal’s decision that capacity in ‘contact’ cases can be considered on a person specific basis as this should permit an evaluation of capacity in relation to the individual causing concern, rather than demanding evaluation of capacity in a more generic sense.

However, the Court setting aside the first instance decision that PC lacked capacity, and its discussion of the difficulties of assessing capacity in different, but closely related areas (such as capacity to marry, engage in sexual activity or to cohabit) underline how applying the Mental Capacity Act 2005 remains, in some cases, a complex task.

Lee Parkhill is a barrister at 4-5 Gray’s Inn Square. He can be contacted on 0207 404 5252 or by This email address is being protected from spambots. You need JavaScript enabled to view it..