Rupert Chapman

Capacity and the Court of Protection: How unwise is a person allowed to be?

The Court of Appeal has given guidance in the important case of PC, NC v City of York Council [2013] EWCA Civ 478 on the proper test to be applied when considering the capacity of a person to make specific decisions in their life where such capacity is disputed. The issue has relevance to the scope of the powers of the Court of Protection to intervene in the lives of individuals suffering from some impairment of cognitive functioning. In particular the decision impacts on the question of whether a decision by the individual to do something which the Court and other professionals consider to be unwise and contrary to their best interests, should be viewed as a foolish decision by someone who has capacity in the broader sense, and which they should therefore be allowed as an adult to make in the interests of autonomy, or whether the unwise nature of the decision can be used as evidence of a lack of capacity to make such a decision and therefore gives jurisdiction for the Court to exercise its paternalistic jurisdiction.

The central issue in this case was the capacity of a 48 year old married woman (PC) to decide whether to cohabit with her husband. PC had a learning disability and lacked litigation capacity. She had, however, capacity to marry and to make most decisions in her life and had lived independently for much of her life. She had met her husband in 2001 and they had cohabited for a short period before the husband was sent to prison for a lengthy term for sexual offences. The couple married in 2006 while NC was still incarcerated and the Court of Protection proceedings were issued as a result of the concerns of the local authority arising from his release from prison. PC did not accept NC’s guilt, which he denied and NC had not received any therapy which might reduce the risk posed to PC, which risk was accepted as being significant. The couple wished to cohabit again.

A psychiatrist had reported to the Court that PC lacked capacity to make any decision connected to the issue of her relationship with NC. This fact was disputed by the official solicitor on behalf of PC and by NC, though accepted by the local authority. The psychiatrist’s view was based in large part on the fact that PC refused to accept even the possibility of NC’s guilt.

Hedley J heard argument as to whether, given the specific nature of the psychiatrist’s evidence, the question for the court was whether the test was;

(a) whether, as a result of her disability, PC was unable to make a decision about NC specifically (i.e. a ‘person-specific decision’), even though she might generally have the capacity to make decisions about whether to cohabit with partners in the broader sense, in which case the unwise nature of PC’s decision was relevant to the question of capacity, or

(b) whether, as a result of her disability, PC was unable to make a decision about cohabitation generally, without specific reference to the circumstances of NC’s convictions (i.e. an ‘act-specific’ test). If this was the test then she might have capacity in general, and would then be left to exercise her autonomy in refusing to accept the risk NC posed.

The Judge concluded that the answer was that the test was in fact ‘decision-specific’, which meant that the question was whether the person could make the decision in question, which would sometimes be act-specific and sometimes person-specific. He concluded that PC did not have capacity to make the decision to resume cohabitation with NC, that she was not able to understand the risk from NC which was relevant to the issue of capacity, but that PC’s welfare was best served by the reintroduction of cohabitation in a planned and monitored way. PC appealed, in an effort to show that she had capacity and to therefore avoid the involvement of the local authority in monitoring her married life.

The Court of Appeal addressed the question of whether the Court should use an act specific test, which would limit the scope for the Court’s interference in people’s lives, or a person specific one, which would increase that scope, or whether the Judge’s more fluid approach was correct.

The court held that;

The correct test is a decision-specific test.

That decisions about status, such as whether to marry or enter a civil partnership, which require a broader understanding about the relevance and implications of the act on the status of the person are always of their nature act-specific and not person-specific.

That other decisions, such as about whether to have contact with a particular person, which are only able to be understood within a specific factual context, may be person-specific.

That the central issue, as set out in s.2(1) of the Mental Capacity Act 2005 is whether a person can make the specific decision for themselves.

That the decision as to cohabitation was a person-specific decision and that the relevant information about NC should be considered within the assessment of capacity.

The court stressed, however, that the jurisdiction of the Court is not founded by the existence of professional concerns alone. There must be a causal link between impairment of functioning and lack of capacity to make the decision. Otherwise it could be said that any person in an unwise or dangerous relationship would be subject to the Court’s intervention. The Court had erred in failing to establish that the inability to make an unwise decision was the result of the impairment of brain or mind reflected by PC’s learning disability. The fact that she had capacity to marry implied that, without evidence to the contrary, she had the capacity to ‘perform the terms of the marriage contract’ – including to cohabit. The Judge and the psychiatrist had allowed themselves to be too swayed by the unwise outcome. The appeal was therefore allowed and the couple could cohabit freely.

This decision is important for its clarification of the manner in which the Court should decide these issues, and in its potential widening of the matters which may be held to reflect a lack of capacity – and thus perhaps increasing the number of people and decisions which the Court of Protection might have jurisdiction over. Practitioners must consider the nature of the decision in question, whether it affects status or not and whether the nature of the outcome pursued by the subject person is relevant to their capacity to make the decision. The case is more significant, however, in its jealous guarding of the fine line between a lack of capacity to decide on any issue and the personal autonomy of the individual to make decisions which professionals consider unwise. It helps protect from the danger of considering someone who has a learning disability and who makes an unwise decision to therefore lack the capacity to make that decision, and ensures that people who suffer from a mental impairment have as much right to be foolish as those who do not.

 

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