PC & Anor v City of York Council

Capacity under Mental Capacity Act 2005 is decision-specific. The relevant decision may, where its nature requires it, be assessed in its particular factual and personal context. Capacity to marry remains status-specific rather than spouse-specific, but that does not prevent a decision about contact or cohabitation from being person-specific.

A finding of incapacity requires a clear evidential basis that the person is unable to make the decision because of mental impairment. The court must not substitute professional concern about an unwise outcome for a functional assessment of capacity. Adult autonomy includes the freedom to make an unwise decision where capacity is retained.

PC, who had significant learning disabilities, was married to NC. NC had been convicted of serious sexual offences and, after his release from prison, the local authority sought protective orders in the Court of Protection.

Hedley J held that PC lacked capacity to decide whether to resume cohabitation with NC, while finding that monitored cohabitation was in her best interests. PC and NC appealed. The central issues were whether capacity under the Mental Capacity Act 2005 could be assessed by reference to a particular person, and whether the evidence could support an incapacity finding when PC had capacity to marry and to make other ordinary decisions.

1. Appeal allowed. The Court of Appeal set aside the finding that PC lacked capacity to decide whether to live with NC.

2. McFarlane LJ held that capacity under Mental Capacity Act 2005, Part 1 is decision-specific. The court must identify the actual matter requiring a decision and apply the statutory test to it. Capacity to marry is a status-specific assessment, but a decision whether to have contact with or live with a particular person may require consideration of information specific to that person. Hedley J was therefore correct, as a matter of law, to treat NC’s conviction and the risk it might present as information potentially relevant to a decision about cohabitation.

3. The governing test is the composite test in section 2(1): inability to make the decision must be because of an impairment or disturbance of the mind or brain. The abilities described by section 3 explain and assist the application of that test; they are not separate free-standing tests. The statutory scheme also prevents a court from treating an unwise decision, or professional concern about its likely outcome, as incapacity.

4. The evidence did not establish that PC was unable to make the cohabitation decision. She had capacity in other areas of life and capacity to marry. The judge did not identify a sound evidential basis for distinguishing her ability to marry from her asserted inability to decide whether to live with her husband. Clear and cogent evidence was required, but was absent. Lewison LJ additionally observed that capacity to enter a marriage, whose ordinary obligations include living together, entailed capacity to decide to perform that obligation absent a relevant change in capacity or circumstances.

5. McFarlane LJ expressly left open whether, in a different case, the law could permit contrary conclusions on capacity to marry and capacity to cohabit. Richards LJ agreed with both judgments.

• Court of Appeal (Civil Division) — allowed the appeals and set aside the incapacity finding: [2013] EWCA Civ 478.
• Family Division of the High Court, sitting as the Court of Protection — Hedley J held on 20 July 2012 that PC lacked capacity to decide whether to resume cohabitation with NC, but held that monitored and supported cohabitation was in her best interests.