PC (by her litigation friend the Official Solicitor) [1] and Another v City of York Council

Hearing date: 20 March 2013

The central issue in this appeal concerns the capacity of a married woman to decide whether or not she is going to live with her husband. PC is a 48 year old woman who, despite having significant learning disabilities, has the capacity to marry and, indeed, has capacity to make all of the other decisions that confront her in the normal course of life (save that of conducting this litigation). The relevant local authority asserts that, despite having capacity to marry, PC nevertheless lacks capacity to decide to cohabit with her husband NC. On 20 ^th July 2012, Hedley J, sitting as a judge of the Court of Protection, agreed with the local authority and held that PC lacked capacity to decide to cohabit. That conclusion triggered the Court of Protection's jurisdiction under Mental Capacity Act 2005, s 4 ['MCA 2005'] to determine whether or not it was in PC's best interests to live with NC or otherwise to have contact with him. Upon reading their respective notices of appeal, I granted leave to PC and to NC to appeal against the judge's determination on capacity.

In opening the appeal, Mr Paul Bowen QC, acting with Mr Joseph O'Brien for PC on the instruction of the Official Solicitor put the question for the court in this manner: "Is the test for capacity to cohabit the same as the test for capacity to marry?" In addition to this central question, the appeal has also raised a more general issue relating to the character of decisions that may fall for consideration under the MCA 2005: is capacity under the MCA always to be related to the general nature of the decision that is to be made, or may a decision be 'person specific' or 'decision specific'?

Factual context

The factual context within which these issues fall to be considered can conveniently be taken from paragraphs 2 to 5 of the judgment of Hedley J:

'PC is a woman who was born on 29 ^th June 1964, so that she is now aged 48. There is no doubt she had a troubled childhood and that the Local Authority Social Services were involved from about the age of six onwards. Part of her education was in a residential special school and there is no doubt that she was diagnosed with mild learning difficulties, a diagnosis that has been repeated on occasions since then. It fundamentally reflects an IQ assessment of somewhere between 66 and 69, the word "mild" is used in relation to "moderate" and "severe" and should not be misunderstood as suggesting that PC's learning difficulties are other than quite significant in ordinary terms.

At the age of 15 she had a termination of pregnancy coupled with a denial that sexual intercourse had ever taken place, but the fact is that for much of her life she has lived more or less independently. She was married on 12 ^th October 1987 but divorced the following year, and indeed sustained another termination in due course. She entered into a second relationship in October 1999, that ended in April 2001 because she appreciated (and this may be of some significance in this case) that the man concerned had convictions in relation to sexual matters with young boys and she was not willing to continue the relationship on that basis. She did, however, have a child of her own born on 10 ^th November 20001 to this man, but although the child lived with her for a little while, in due course care proceedings were taken and most of his life has been spent living with PC's sister and she has contact from time to time with him.

In September 2001 she began a relationship with NC. That relationship ripened into cohabitation but was cut short in November 2002 by NC's arrest in respect of matters for which he was in due course convicted and on 18 ^th July 2003 sentenced to a term of 13 years imprisonment. PC and NC married in August 2006 whilst NC was serving that sentence of imprisonment. In July 2011 NC was released subject to licence and it appears that the licence expires in August of this year [2012 ]. The Local Authority issued proceedings in the Court of Protection on 30 ^th June 2011 in anticipation of NC's release.

It is important to set out a number of matters which are either common ground or are undisputed. First, the offences of which NC was convicted involved serious sexual offences in which both NC and his father were found to have been complicit. Secondly, NC has always denied his guilt of those offences and so has never been in receipt of therapy or of any treatment in relation to sex offences. Thirdly, PC has always maintained, both that NC was innocent of all these matters, and that he was convicted because he had been framed by his previous wives, who were indeed the complainants in those offences. Fourthly, it is accepted on all sides that NC must be taken to pose a serious risk to PC in her capacity as a cohabiting wife. Fifthly, it is important to stress that there is no evidence that PC has in fact ever suffered serious harm from NC, nor is there any evidence to suggest that there has been other than substantial compliance with the protective regime that has been in place, both in terms of NC's licence and orders of the Court of Protection. Moreover, there is no evidence that to date there has been contact between NC and his father, though the question as to the future is unknown. Next, it is common ground that NC and PC have a unified wish to resume married life together.'

Statutory context

Before proceeding further it is necessary to set out the key statutory provisions within the MCA 2005:

"PART 1

PERSONS WHO LACK CAPACITY

The principles

1 The principles

(1) The following principles apply for the purposes of this Act.

(2) A person must be assumed to have capacity unless it is established that he lacks capacity.

(3) A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.

(4) A person is not to be treated as unable to make a decision merely because he makes an unwise decision.

(5) An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.

(6) Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action.

Preliminary

2 People who lack capacity

(1) 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.

(2) It does not matter whether the impairment or disturbance is permanent or temporary.

(3) A lack of capacity cannot be established merely by reference to—

(a) a person's age or appearance, or

(b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity.

(4) In proceedings under this Act or any other enactment, any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities.

(5) No power which a person ("D") may exercise under this Act—

(a) in relation to a person who lacks capacity, or

(b) where D reasonably thinks that a person lacks capacity, is exercisable in relation to a person under 16.

(6) Subsection (5) is subject to section 18(3).

3 Inability to make decisions

(1) For the purposes of section 2, a person is unable to make a decision for himself if he is unable—

(a) to understand the information relevant to the decision,

(b) to retain that information,

(c) to use or weigh that information as part of the process of making the decision, or

(d) to communicate his decision (whether by talking, using sign language or any other means).

(2) A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means).

(3) The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.

(4) The information relevant to a decision includes information about the reasonably foreseeable consequences of—

(a) deciding one way or another, or

(b) failing to make the decision.

17 Section 16 powers: personal welfare

(1) The powers under section 16 as respects P's personal welfare extend in particular to—

(a) deciding where P is to live;

(b) deciding what contact, if any, P is to have with any specified persons;

(c) making an order prohibiting a named person from having contact with P;

(d) giving or refusing consent to the carrying out or continuation of a treatment by a person providing health care for P;

(e) giving a direction that a person responsible for P's health care allow a...