PC & Anor v City of York Council [2013] EWCA Civ 478

‘The most important issue for Dr Payne was that PC could not, or would not, accept the guilt, or even the possible guilt, of NC in respect of the matters of which he had been convicted. That for him demonstrated that she was incapable of understanding information relevant to her decision to have contact with him, or to weigh matters in relation to that decision. He went on to say in his oral evidence, although the connection is not explicit in his written evidence, that those matters were referable to her impairment or disturbance of the functioning of the mind or brain. Thus, in the circumstances he concluded that she lacked capacity in relation to issues of deciding contact between herself and NC. He was asked both in writing and in his oral evidence as to whether he could express views about capacity to decide on contact, irrespective of, or divorced from, the question of NC, but he was unable to do so. His conclusion on best interests is effectively founded on the same propositions.’

‘I do not for one moment doubt Dr Payne’s general professional competence but I do approach his evidence with great care in this case. Section 1(4) of the Act says that a person is not to be treated as unable to make a decision merely because he makes an unwise decision. Although Dr Payne explicitly disavowed it, his expression of views came, in my view, very near to an infringement of section 1(4). Moreover, his refusal to attempt to separate issues of capacity from NC specifically rather fortified that impression and betrayed a lack of familiarity with the wider workings of the Mental Capacity Act in the Court of Protection. Nevertheless, there was a train of reasoning which was potentially relevant to what might be the issue or issues in hand. I accept his assessment that section 2(1) is satisfied. I accept that NC’s guilt is potentially a highly relevant factor. The issue is, however, 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. In my view, however, the court would have to be very cautious about reaching conclusions generally on her capacity to decide about issues of residence, care and contact, in the light both of the presumption in section 1(2) of the Act and in the unwillingness of Dr Payne to express any views on those subjects that were not intimately connected with NC’s role in the relevant decision.’

‘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.’

‘… 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. … 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.’

‘There is, so far as I can see, no hint in any of the cases on the point – and I have gone through them all – that the question of capacity to marry has ever been considered by reference to a person’s ability to understand or evaluate the characteristics of some particular spouse or intended spouse. In all the cases, as we have seen, the question has always been formulated in a general and non-specific form: Is there capacity to understand the nature of the contract of marriage?’

‘In relation to her marriage the only question for the court is whether E has capacity to marry. The court is not concerned – has no jurisdiction – to consider whether it is in E’s best interests to marry or to marry S. The court is concerned with her capacity to marry, not with the wisdom of her marriage in general or her marriage to S in particular.’

‘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.’

‘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.’

‘The general rule of English law, whatever the context, is that the test of capacity is the ability (whether or not one chooses to exercise it) to understand the nature and quality of the transaction. … But on this very general level of abstraction – that capacity is dependent upon the ability to understand the nature and quality of the transaction – the same basic principle applies whether the question is as to capacity to enter into a contract, to execute a deed, to marry, to make a will, to conduct litigation, to consent to a decree of divorce, or to consent to medical treatment.’

‘The “outcome” approach focused on the final content of the decision: a decision which is inconsistent with conventional values or with which the assessor disagreed might be classified as incompetent. This approach “penalises individuality and demands conformity at the expense of personal autonomy”: Mental Incapacity (1995) (Law Comm No 231) (HC 189), para 3.4. The commission therefore recommended the functional approach: this asked whether, at the time the decision had to be made, the person could understand its nature and effects. … However, the commission went on to accept that understanding might not be enough. There were cases where people could understand the nature and effects of the decision to be made but the effects of their mental disability prevented them from using that information in the decision making process. …’

‘For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.’

‘I accept his assessment that s 2(1) is satisfied’; b) The second reference to s 2(1) is at paragraph 16: ‘By s 2(1), as I have already indicated, the want of capacity must be attributable to an impairment of or disturbance in the functioning of the mind or brain’; c) The final reference is at paragraph 21: ‘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.’

“To have the capacity to marry one must be mentally capable of understanding the duties and responsibilities that normally attach to marriage. What then are the duties and responsibilities that in 2004 should be treated as normally attaching to marriage? In my judgment the matter can be summarised as follows. Marriage, whether civil or religious, is a contract, formally entered into. It confers on the parties the status of husband and wife, the essence of the contract being an agreement between a man and a woman to live together, and to love one another as husband and wife, to the exclusion of all others. It creates a relationship of mutual and reciprocal obligations, typically involving the sharing of a common home and a common domestic life and the right to enjoy each other's society, comfort and assistance.”