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Cite as: [2013] WLR(D) 176, [2013] Med LR 213, [2013] EWCA Civ 478, [2014] 1 FAM 10, [2014] 2 WLR 1, (2013) 16 CCL Rep 298, [2014] FAM 10, [2014] 1 Fam 10

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		Neutral Citation Number: [2013] EWCA Civ 478
		Case No: B4/2012/2203; B6/2013/0221

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
THE FAMILY DIVISION OF THE HIGH COURT
MR JUSTICE HEDLEY

Royal Courts of Justice
Strand, London, WC2A 2LL

01/05/2013

B e f o r e :

LORD JUSTICE RICHARDS
LORD JUSTICE MCFARLANE
and
LORD JUSTICE LEWISON
____________________

Between:

	PC (by her litigation friend the Official Solicitor) [1] NC [2]	Appellants
	- and -
	City of York Council	Respondent

____________________

Mr Paul Bowen QC and Mr Joseph O'Brien (instructed by Langleys Solicitors LLP) for the 1st Appellant
Mr Jonathan Butler and Miss Eliza Sharron (instructed by Switalskis) for the 2nd Appellant
Mr Conrad Hallin (instructed by City of York Council) for the Respondent
Hearing date: 20 March 2013
____________________

HTML VERSION OF JUDGMENT
____________________

Lord Justice McFarlane:

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

different person to take over that responsibility.

(2) Subsection (1) is subject to section 20 (restrictions on deputies).

27 Family relationships etc.

(1) Nothing in this Act permits a decision on any of the following matters to be made on behalf of a person—

(a) consenting to marriage or a civil partnership,

(b) consenting to have sexual relations,

(c) consenting to a decree of divorce being granted on the basis of two

years' separation"

The hearing before Hedley J

Hedley J had the benefit of written and oral evidence from Dr Payne, who is a distinguished consultant forensic psychiatrist at Broadmoor Special Hospital. Dr Payne concluded that PC suffers from an impairment of, or disturbance in the functioning of the mind or brain by reason of her learning difficulties. Secondly, it was his opinion that PC lacked capacity to decide any issue which related to her relationship with or contact with NC. Thirdly, Dr Payne considered that it was in PC's best interests to have no contact at all with NC.

In his judgment at paragraphs 8 and 9, Hedley J notes that Dr Payne, despite his wide experience of the Mental Health Act and the MCA, had no particular experience of the work of the Court of Protection and that his views on capacity were rejected by both the Official Solicitor on behalf of PC and by NC. Dr Payne's views on capacity were, in part accepted by the Local Authority, but they did not support his views on welfare.

Hedley J summarised Dr Payne's evidence at paragraphs 10 and 11 of the judgment as follows:

'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.'

Given the challenge that was made to Dr Payne's evidence, and the expert's apparent inability to divorce the assessment of capacity from the specific issues relating to NC, Hedley J's approach to this evidence is of importance. It is described at paragraph 12 of the judgment:

'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.'

In the course of the hearing before us Mr Bowen has sought to highlight a number of points from within Hedley J's analysis of Dr Payne's evidence:

a. the reference by the judge to accepting 'that section 2(1) is satisfied' must be limited to the diagnostic element in s 2(1) ('… because of an impairment of, or a disturbance in the functioning of, the mind or brain') and not to the earlier part of the subsection ('…he is unable to make a decision…');

b. a finding that PC's stance 'derives in significant part from her impairment' falls short of establishing a clear causative link between the impairment and PC's capacity to make the relevant decision;

c. the overall tone of 'great care' and the need to be 'very cautious' about Dr Payne's evidence which, on the judge's analysis only 'may' support a conclusion of lack of capacity, is not solid evidential ground for the judge to go on, as he did, to make that very conclusion.

One aspect of Dr Payne's evidence which was uncontroversial between the parties, and was accepted by the judge, was his opinion that PC lacked capacity to litigate and that that was a consequence of her impairment.

Hedley J also heard evidence from the local authority social worker who had been responsible for PC's case throughout the relevant period. She was satisfied that PC and NC were seriously committed to married life together, but was of the view that if things went wrong in the marriage, particularly with respect to sexual matters that PC did not like, then PC would be likely to make her views known to any member of the Local Authority with whom she had retained a relationship. The social worker did not apparently venture an opinion upon PC's capacity, but, on the issue of PC's welfare, she concluded that the option of maintaining a regime of 'no contact' between husband and wife was not tenable. She therefore proposed that cohabitation should be resumed, albeit on a basis that was monitored and supported.

In addition, Hedley J had the benefit of written evidence from an independent social worker on the topic of PC's best interests. The judge did not apparently hear evidence from either PC or NC. The evidence upon which the judicial assessment of capacity fell to be based was therefore very largely that from Dr Payne, albeit set against the general factual background relating to PC that had been established.

Assessment of capacity by Hedley J

At paragraphs 16 and 17 of his judgment, Hedley J correctly summarised the statutory provisions and identified the function of the court as being the application of the statutory scheme to the facts of each particular case. Paragraphs 19 to 21 set out the judge's analysis of the capacity issue and are plainly central to this appeal:

'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.'

On the basis of that finding, Hedley J went on to determine that PC's welfare was best served by resuming cohabitation with NC within a scheme of monitoring and support provided by the Local Authority as approved by the Court of Protection.

The challenge made to Hedley J's ruling

The case for PC in this court is based upon three primary grounds of appeal:

i. The judge wrongly identified the issue for determination as being whether PC had capacity to 'resume married life', rather than by reference to the established domains of care, contact and residence. As a result the judge conflated the relevant issues;

ii. The judge failed to give proper weight to the fact that PC and NC had contracted a valid marriage in 2006 and there had been no relevant change in circumstances since that time to bring the validity of the marriage into question;

iii. In any event, the judge wrongly applied a person-specific, rather than an act-specific, test in determining capacity.

In presenting the appeal Mr Bowen concentrated the focus of his submissions almost entirely upon his third ground; I therefore propose to summarise the case in relation to this ground first before turning to the other two grounds.

PC's case is that the judge should not have applied a person-specific test which looked at PC's capacity to decide to resume cohabitation with a single individual, NC. The proper test, it is submitted, should be act-specific and should consider whether PC lacks capacity to decide to resume cohabitation with any person. If there are particular concerns about NC's potential, for example, to apply undue influence to PC then this, submits Mr Bowen, is not a matter of her capacity under the MCA 2005, but might bring into question the need to look outside the statutory scheme to the inherent jurisdiction of the High Court to protect PC.

Mr Bowen sought to make good the Official Solicitor's case that the judge was wrong as a matter of law to adopt a person-specific, rather than an act-specific, approach to the question of capacity by setting out some eight 'steps' which described the Official Solicitor's reasoning. Although the eight individual points listed at paragraph 46 of the skeleton argument are each relevant to the issue and, to varying degrees, support the conclusion argued for, they are not, in my view, 'steps' which lead one to the other in a logical progression. As the oral argument developed I considered that the Official Solicitor's case on the third ground of appeal in reality comprised of three distinct submissions which I would summarise as 'A', 'B' and 'C' as follows:

A. As a matter of law a 'decision' to which MCA 2005, Part 1 applies can only be act-specific and can never be person-specific.

B. If, contrary to A, it is permissible for some 'decisions' to be person-specific, the decision of a wife to go to live with her husband is not one of those decisions.

C. If, contrary to A and B, it is permissible for the decision of a wife to go to live with her husband to be person-specific, where, as here, the wife has had and maintains capacity to marry the outcome of the test for capacity to marry will be the same as that for the capacity to decide to cohabit.

Having thus re-cast the submissions in a manner which, to me, reflects the contours of the argument and which I hope does not cause undue offence to Mr Bowen and Mr O'Brien, I now propose to consider each in turn.

Ground 3A: Every decision to which MCA 2005, Part 1 applies must be act-specific and not person-specific

This submission is a direct challenge to the approach taken by Hedley J in the following passages from paragraph 19 of the judgment:

'… 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.'

In relation to ground 3A, Mr Bowen makes the following core points:

a. Whether an act-specific or a person-specific approach is adopted, the same approach should apply across the board to all relevant domains including marriage, resumption of marriage, consent to sexual relations, care, contact and residence; absurd consequences would flow from any other conclusion.

b. There is clear and settled authority that both capacity to marry and capacity to engage in sexual relations are act, and not person, specific.

c. If points (a) and (b) are made out, then it must follow that the act-specific approach to marriage and sexual relations must be applied to every other relevant domain.

The solid ground within this part of Mr Bowen's submission is (b): there is indeed clear and settled authority that capacity to marry is act, rather than person, specific. There is also some relatively solid ground for holding that the same is also true with respect to consent to sexual relations. It is therefore not necessary to do more than refer to the key authorities.

In Sheffield City Council v E [2005] Fam 326, a case prior to the MCA 2005 under the inherent jurisdiction, Munby J, as he then was, conducted an exhaustive review of the authorities on capacity to marry and concluded at paragraph 85:

'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?'

Later, at paragraph 102, Munby J concludes:

'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 Sheffield decision has subsequently been followed at first instance in M v B, A and S (by the Official Solicitor) [2005] EWHC 1681 (Fam); [2006] 1 FLR 117 and A, B and C v X and Z [2012] EWHC 2400 (COP). Insofar as the Sheffield decision relates to capacity to marriage it has not been challenged in the present appeal and I see no reason not to accept Munby J's conclusion, based as it is upon established authority, that capacity to marry is to be assessed in general and as a matter of principle, and not by reference to any particular prospective marriage. It is, as Mostyn J neatly put it in D Borough Council v B [2012] Fam 36; [2011] EWHC 101 (Fam), status-specific and not spouse-specific. The subsequent implementation of the MCA 2005 does not establish any basis for questioning the continued applicability of a general and non-specific approach to capacity to marry in proceedings under the Act.

In Local Authority X v MM [2007] EWHC 2003 (Fam) ['MM'] Munby J applied the same approach, for the same reasons, to the capacity to consent to sexual relations. At paragraph 86 he said:

'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.'

Munby J's approach in MM was doubted by Baroness Hale in R v Cooper [2009] UKHL 42; [2009] 1 WLR 1786 in the context of a criminal prosecution for an offence of 'sexual activity with a person with a mental disorder impeding choice' contrary to Sexual Offences Act 2003, s 30. The House of Lords held that the Court of Appeal had unduly limited the scope of s 30(1) of the 2003 Act by holding that a lack of capacity to choose whether or not to agree to sexual activity cannot be person or situation specific. At paragraph 27 of R v Cooper, and in the context of the 2003 Act, Baroness Hale stated:

'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.'

Earlier, at paragraph 7, Baroness Hale had doubted the correctness of Munby J's approach in MM but at paragraph 25 she observed that 'it is not for us to decide whether Munby J was right or wrong about the common law. The 2003 Act puts the matter beyond doubt.'

Subsequently Mostyn J in D Borough Council v B [2012] Fam 36; [2011] EWHC 101 (Fam) has held that the House of Lords decision in R v Cooper is limited to the application of the test in s 30 of the 2003 Act and is not inconsistent with the approach of Munby J in MM. Mostyn J therefore held that in proceedings under the MCA 2005 capacity to consent to sexual relations is act-specific and not partner-specific.

For the purposes of the present appeal it is not necessary to resolve any apparent doubt over the correctness of Munby J's decision in MM and that of Mostyn J in D Borough Council v B. Whilst consent to sexual relations forms part of the wider decision by a spouse whether or not to take up full cohabitation with her husband, the two decisions are not precisely the same. The fact that one may be act-specific does not mean that the other, wider, decision cannot be person-specific. In any event, for the purposes of this part of the Official Solicitor's argument it is sufficient that one major category of decision, namely capacity to marry, is act, rather than person, specific.

On the basis that at least one, if not more, categories of decision making capacity is act specific, Mr Bowen submits that the same must apply to decision making capacity in all other relevant domains (submission (a) in paragraph 20 above). To make good his argument Mr Bowen turns first to the description of the approach to capacity given by Munby J in paragraph 19 of his judgment in the Sheffield case:

'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.'

Later, at paragraphs 134 and 135, Munby J identified the elements necessary for a person to have sufficient understanding of a problem in order to have capacity to decide what to do about it, namely the ability to (i) recognise the problem, (ii) obtain, take in, comprehend and retain information about it, (iii) believe that information and (iv) evaluate that information so as to arrive at a solution. He held that those rather abstract terms applied to all 'problems' and to all 'decisions', irrespective of whether they related to capacity to marry or some other topic.

Mr Bowen then refers to the range of decisions that may fall to be considered by the court and he submits, correctly, that a different level of capacity may be required depending upon the nature of the decision being taken, for example there is a difference between deciding to go to a foreign country for a short holiday or deciding to emigrate. Despite these differences, he argues that, stripped of the factors that distinguish one decision from another, the test for capacity in all domains of decision making is the same.

The Official Solicitor's submission is therefore that there can be no warrant for adopting a person-specific approach to the assessment of capacity in one context, but not in another. It is argued that this is particularly so in closely related domains such as marriage, sexual relations, care, contact and residence. How can it be, goes the argument, that A's capacity to decide whether or not to have contact with or reside with Z can be related specifically to individual features relevant to Z, yet her capacity to marry is related solely to the status of being married, without any reference to Z as her prospective spouse? Either the specific person or circumstances are relevant to all categories of decision or they are relevant to none.

Against this Mr Conrad Hallin on behalf of the Local Authority makes the simple but forceful submission that the statutory test for capacity is 'decision' specific, rather than being 'person' or 'act' specific. In so doing he fully supports the approach taken by Hedley J in the judgment under consideration. Whilst readily conceding that capacity to marry relates to the status of marriage, and is blind to the specific identity of any particular spouse, where the issue is not one of status, but arises from particular circumstances, Mr Hallin submits that without grounding the decision making in a particular factual context, the question of capacity does not gain any traction and is effectively meaningless. To illustrate the point reference is made to MCA 2005, s 3(1)(a) which requires determining whether the individual is able to 'understand the information relevant to the decision'; Mr Hallin argues that that requirement must surely, in the context of the specific decision before the court, refer to information relevant to PC taking up residence with NC in the light of his conviction and the potential that he therefore has for future abusive behaviour.

In developing his submission, Mr Hallin goes back to what he submits is the plain meaning of the statute which, time and again, in ss 1, 2 and 3 refers to the capacity of a person 'to make a decision' in relation to 'a matter' at the 'material time'. There is no need, he argues, to modify or alter the statutory language by tying it to, or forbidding, reference to particular types of decision. On the contrary, the open and flexible wording of these provisions allows them to be applied to the full range of decisions from the most trivial to the most profound.

With respect to the focus on status in relation to capacity to marry and the common law approach to capacity to engage in sexual relations, Mr Hallin points to the fact that the MCA 2005 takes a particular course with respect to these and other similar issues in s 27 (reproduced at paragraph 4 above) where, for example, in s 27(1)(a) the court is not permitted to decide to consent to marriage or a civil partnership on behalf of a person. The topics that are hived out by s 27 are therefore, it is said, in something of an exceptional category when set against other decisions.

Finally, Mr Hallin points to the decision specific nature of MCA 2005, s 17 which expressly extends the scope of personal welfare decisions that may be taken by the court to 'deciding what contact, if any P is to have with any specified persons' or 'making an order prohibiting a named person from having contact with P'.

Drawing these matters together, I am clear that the submissions made by Mr Hallin are sound and that the course adopted by Hedley J at paragraph 19 on the nature of the jurisdiction under MCA 2005 is the correct one. 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'. There is neither need nor justification for the plain words of the statute to be embellished. I do not agree with the Official Solicitor's submission that absurd consequences flow from a failure to adopt either an act-specific or a person-specific approach to each category of decision that may fall for consideration. To the contrary, I endorse Mr Hallin's argument to the effect that removing the specific factual context from some decisions leaves nothing for the evaluation of capacity to bite upon. The MCA 2005 itself makes a distinction between some decisions (set out in s 27) which as a category are exempt from the court's welfare jurisdiction once the relevant incapacity is established (for example consent to marriage, sexual relations or divorce) and other decisions (set out in s 17) which are intended, for example, to relate to a 'specified person' or specific medical treatments.

At the core of Mr Bowen's argument is the submission summarised at paragraphs 28 and 29 which, correctly, identifies Munby J's description of the approach to capacity in the Sheffield case, which is plainly a forerunner of the statutory test in MCA 2005, Part 1, as applying to all problems or decisions, irrespective of the character of the topic falling for consideration. In the same manner the regime and structure established in MCA 2005, ss 1 to 3 applies to all decisions, whatever their character. Nothing in the words of Munby J which are relied upon indicates that the test for capacity is either to be act-specific or person-specific for all decisions. Munby J is not holding that all must be approached on the issue specific basis identified for marriage and sexual relations; indeed his discrete description of the approach in those two categories would be meaningless if he intended to hold that every single type of decision should also be issue specific. In this respect, the Sheffield decision is at least irrelevant to the submission that Mr Bowen seeks to establish; it is, in fact, a plain statement to the contrary and supports the 'decision-specific' approach set out in the MCA 2005, which is that the same regime for evaluating capacity is to be applied to each and every individual decision which falls for consideration.

The central provisions of the MCA 2005 have been widely welcomed as an example of plain and clear statutory language. I would therefore deprecate any attempt to add any embellishment or gloss to the statutory wording unless to do so is plainly necessary. In this context the reference within the Official Solicitor's argument to 'domains' of decision-making is unwelcome and unnecessary. The court is charged, in relation to 'a matter', with evaluating an individual's capacity 'to make a decision for himself in relation to the matter' (s 2(1)); no need has been identified for grouping categories of 'matter' or 'decision' into domains, save where to do so has been established by common law or by the express terms of the MCA 2005 (for example, capacity to marry). It follows that the Official Solicitor's ground (i), which relies upon evaluation with respect to relevant 'domains', and which was not pursued during oral argument, cannot succeed.

I do not therefore accept Mr Bowen's submission that there is no basis for the court to adopt an act specific approach to the question of capacity to marry but to personalise the question of whether there is capacity to decide whether or not to have contact with, or reside with, a particular spouse. One, capacity to marry, involves understanding matters of status, obligation and rights, the other, contact and residence, may well be grounded in a specific factual context. The process of evaluation of the capacity to make the decision must be the same, but the factors to be taken into account will differ. As I have already observed, this distinction is expressly reflected in MCA 2005, s 17 and s 27 and, indeed, it is common place for the Court of Protection to be asked, for example in a case of dementia, to regulate the contact that one spouse may have with another.

It follows that I accept Mr Hallin's submission that the reference in MCA 2005, s 3(1)(a) to the ability to 'understand the information relevant to the decision' in this particular case must include reference to information specifically relevant to NC in the light of his conviction and its potential impact on the decision before the court.

Hedley J was therefore correct in the approach that he adopted in paragraph 19 of his judgment by fixing his attention 'upon the actual decision in hand' with the result that ground of appeal 3A, as I have cast it, must fail.

Ground 3B: If it is permissible for some 'decisions' to be person-specific, the decision of a wife to go to live with her husband is not one of those decisions

I can deal with ground 3B in much shorter form. It must follow from my rejection of any act-specific or person-specific distinction, other than those established by common law and/or expressly provided for in the MCA 2005, as having an impact upon the evaluation of capacity under Part 1 of the Act that the decision of a wife to go to live with her husband is no more, nor no less, than 'the matter' in relation to which the court must determine the issue of capacity. As Hedley J rightly described, the task of the court is to apply the structure of the Act to the facts of the case. Part of the court's focus will be upon the individual's ability to understand, retain and evaluate 'information relevant to the decision' in the manner set out in s 3(1). Where the decision concerns whether a wife is to go to live with her husband, the relevant information must include that which is specifically relevant to the particular wife and the particular husband. In the circumstances, ground 3B cannot succeed.

Ground 3C: If it is permissible for the decision of a wife to go to live with her husband to be person-specific, where, as here, the wife has had and maintains capacity to marry the outcome of the test for capacity to marry will be the same as that for the capacity to decide to cohabit.

As will be seen in the remainder of this judgment, I readily accept that the evaluation of the capacity to marry and the capacity to cohabit, and in particular the evaluation of whether any apparent inability to make the relevant decision is 'because of an impairment of, or a disturbance in the functioning of, the mind or brain', will involve consideration of factors that are very closely related. On the facts of any particular case, and indeed on the facts of this case, it may be impossible for the court to come to contrary conclusions on these two issues.

What can be stated is that the statutory test is indeed the same for both issues, just as it is for any issue of capacity falling for evaluation under MCA 2005, ss 1 to 3. The real question behind ground 3C as I have drawn it is whether, as a matter of law, it is permissible for a court to come to contrary conclusions on these two matters. Because of the decision that I have reached on the facts of this case, it is not necessary to determine that legal issue, which is a matter that may have to be determined by another court on another occasion.

Ground (ii): the impact of the fact that PC has capacity to marry.

Although ground (ii) as pleaded was a relatively modest complaint that the judge failed to attribute sufficient weight to the finding that PC had had capacity to marry in 2006 and that there had been no change in her capacity in that respect since that time, during oral submissions this ground developed into a submission that it was simply not open to the court on the facts of this case to conclude that there was lack of capacity under s 2(1) in relation to cohabitation, given the contrary finding with respect to capacity to marry. The following points were made in support of this ground:

i. PC has capacity in every other area of her life, save for the conduct of this litigation;

ii. PC had and has retained capacity to marry;

iii. PC has extricated herself from unsatisfactory or harmful relationships on two previous occasions;

iv. PC has previously lived with NC for a year;

v. the evidence from Dr Payne did not support a finding of lack of capacity;

vi. there was no other evidence upon which a lack of capacity could be founded.

In the course of submissions Mr Bowen pointed out that, having established that capacity to marry was maintained, Hedley J failed to identify how the decision to cohabit fell on the other side of the line. In addition, and importantly, it was submitted that the judge's finding that the inability to make the decision was 'referable' to or 'significantly relates' to PC's learning disability fell short of finding the inability was 'because of' her disability as is required by s 2(1).

On behalf of NC, Mr Jonathan Butler took the court to Baroness Hale's speech in R v Cooper in which, at paragraphs 11 to 13, there is a summary of the law reform project which eventually resulted in the MCA 2005. Baroness Hale described consideration being given to three broad approaches: the 'status', the 'outcome' and the 'functional' approaches. The status approach, which excluded all people with a particular characteristic from a particular decision, irrespective of their actual capacity to make it at the time was quite out of tune with the policy behind the move towards reform, and received little support. At paragraph 13 Baroness Hale described the distinction between the 'outcome' and the 'functional' approaches:

'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. …'

Mr Butler argued that, whilst the functional approach underpins the MCA 2005, both Dr Payne and Hedley J had fallen into error by looking at the content of PC's decision to go to live with NC, and thereby applied the outcome approach.

In response Mr Hallin submitted that capacity to marry and capacity to decide to take up residence with one's spouse were totally different issues and that the judge's conclusion on the latter was not incompatible with the former. He argued that if a couple were not married, and marriage was not an issue, the court would nevertheless have jurisdiction to decide whether one partner had capacity to decide to go to live with the other. Whilst that submission is undoubtedly correct, it is of no assistance in a case such as the present where a marriage has taken place and the court has concluded that PC has capacity to marry.

The decision that faced Hedley J in this case was a difficult one. The difficulty in part arises from the fact that, happily, the degree of mental impairment from which PC suffers is not so gross as to render her incapable of decision making on a global basis.

In addition the difficulty arises because any court would be bound to entertain very significant concerns at the prospect of any woman going to set up home with NC. Looked at objectively, through the eyes of experienced professionals, NC clearly presents a significant risk to any woman who enters a close relationship with him. Moreover, any professional understanding will include knowledge of the usual modus operandi of such offenders who may be expected to embark upon a lengthy period of 'grooming' before exhibiting any overtly abusive behaviour. In that context PC's previous experience of living with NC might be seen to be of limited value; indeed some professionals may well anticipate that NC would have behaved well during the previous period of cohabitation. There is therefore an understandable and justified professional concern to protect a potentially vulnerable woman who has formed a close relationship with NC.

The difficulty in the case thus arises from the potential for the understandable professional concern about a vulnerable woman going to live with NC to impact upon the mental capacity assessment under MCA 2005 in a case where the degree of mental impairment lies in the borderline area. In such a case Mr Bowen is right to assert that the structure and provisions of the MCA 2005 are to be applied with clarity and care in order to ensure that the autonomy of the individual is not eroded by the court in a case which, in reality, does not come within the statutory provisions.

Against the background that I have described, the need for the Court of Protection to adhere to the structure established by MCA 2005, Part 1 is all too clear. In particular:

a. a person is not to be treated as unable to make a decision merely because he makes an unwise decision (s 1(4)); and

b. for the Court to have jurisdiction to make a best interests determination, the statute requires there to be a clear causative nexus between mental impairment and any lack of capacity that may be found to exist (s 2(1)).

Mr Butler's reference to Baroness Hale's description of the approach that underpins the MCA 2005 is timely; the court's jurisdiction is not founded upon professional concern as to the 'outcome' of an individual's decision. There may be many women who are seen to be in relationships with men regarded by professionals as predatory sexual offenders. The Court of Protection does not have jurisdiction to act to 'protect' these women if they do not lack the mental capacity to decide whether or not to be, or continue to be, in such a relationship. The individual's decision may be said to be 'against the better judgment' of the woman concerned, but the point is that, unless they lack mental capacity to make that judgment, it is against their better judgment. It is a judgment that they are entitled to make. The statute respects their autonomy so to decide and the Court of Protection has no jurisdiction to intervene.

Mr Bowen correctly submits that there is a space between an unwise decision and one which an individual does not have the mental capacity to take and he powerfully argues that it is important to respect that space, and to ensure that it is preserved, for it is within that space that an individual's autonomy operates.

Conclusion

For the reasons that I have already given, the grounds of appeal and supporting submissions based upon matters of law have failed to establish any justification for interfering with Hedley J's finding of lack of capacity. The remaining issue is upon the application of the evidence in this case to the statutory scheme, with particular regard to the fact that it is common ground that that evidence does not support a finding of lack of capacity to marry.

The core determinative provision within the statutory scheme is MCA 2005, s 2(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.'

The remaining provisions of s 2 and s 3, including the specific elements within the decision making process set out in s 3(1), are statutory descriptions and explanations which support the core provision in s 2(1). The detail within ss 2 and 3, outside that within s 2(1), does not establish a series of additional, free-standing tests of capacity. Section 2(1) is the single test, albeit that it falls to be interpreted by applying the more detailed description given around it in ss 2 and 3.

In the present case Hedley J seems to have approached the statutory scheme by considering s 2(1) and s 3(1) as separate, albeit related, tests, rather than affording central prominence to s 2(1):

a) The first reference to s 2(1) is in paragraph 12 where, with respect to the evidence of Dr Payne, the judge observes: '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.'

It would be going too far to hold that in approaching matters in this way Hedley J plainly erred in applying the law. His judgment refers to the key provisions and twice refers to the nexus between the elements of an inability to make decisions set out in s 3(1) and mental impairment or disturbance required by s 2(1). There is, however, a danger in structuring the decision by looking to s 2(1) primarily as requiring a finding of mental impairment and nothing more and in considering s 2(1) first before then going on to look at s 3(1) as requiring a finding of inability to make a decision. The danger is that the strength of the causative nexus between mental impairment and inability to decide is watered down. That sequence - 'mental impairment' and then 'inability to make a decision' - is the reverse of that in s 2(1) – 'unable to make a decision … because of an impairment of, or a disturbance in the functioning of, the mind or brain' [emphasis added]. The danger in using s 2(1) simply to collect the mental health element is that the key words 'because of' in s 2(1) may lose their prominence and be replaced by words such as those deployed by Hedley J: 'referable to' or 'significantly relates to'.

Approaching the issue in the case in the sequence set out in s 2(1), the first question is whether PC is 'unable to make a decision for herself in relation to the matter', the matter being re-establishing cohabitation with NC now that he is her husband and now that he is has regained his liberty. In this regard the fact that PC has capacity in all other areas of her life (save for litigation) and, in particular, has capacity to marry, is very significant. Hedley J's findings [paragraph 21] that PC is unable to understand the potential risk that NC presents and is unable to weigh up the relevant information [the factors in MCA 2005, s 3(1)(a) and (c)] are therefore distinct and apart from her capacity to undertake these tasks in relation to all other matters that fall for decision, including marriage itself. Against that background it was, in my view, necessary for the judge to spell out why he came to these conclusions, notwithstanding PC's capacity generally to make her own decisions. This the judge did not do. This omission is perhaps understandable as, in reality, the evidential basis for such a distinction had not been established. The only evidence as to capacity came from Dr Payne and, for the reasons rehearsed by the judge himself, his evidence was less than reliable on this point because of the clear potential for him to have focussed upon the 'outcome' (as the Law Commission report would have categorised it) rather than PC's functional ability in general. Nowhere does Dr Payne address the distinction between her ability to decide to marry and her asserted inability to decide to live with her husband. As Lewison LJ observed during the appeal hearing, 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. On that basis Hedley J's conclusion is not sustainable and the appeal must be allowed.

In the light of the finding that I have just made, the assessment of capacity under s 2(1) falls at the first of the two component parts. Insofar as the second part, the mental health element, is concerned, I have already questioned whether Hedley J's findings go so far as to hold that the inability to decide is 'because of' PC's compromised mental ability. In this regard the need to delineate why and how her mental impairment is insufficient to rob her of capacity in all other fields, yet is sufficient to be the cause of her asserted inability to decide to go to live with her husband is on all fours with the need for such clarity with regard to the first limb of s 2(1). For the reasons that I have already given, the evidence in the case is insufficient for this task and the judge's findings on this limb must also fall away.

It follows for the reasons that I have expressed that I would allow the appeal and set aside the judge's finding that PC lacks capacity to decide whether or not to go to live with her husband, NC.

Lord Justice Lewison:

I agree that for the reasons given by McFarlane LJ this appeal must be allowed. Hedley J found that PC had (or must be taken to have had) capacity to marry in 2006. What does that finding entail? In Sheffield City Council v E [2005] Fam 326 Munby J explained:

"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."

Thus in 2006 PC had the capacity to enter into a contract the essence of which was an agreement to live together with her husband. If she had the capacity to make that promise, she must then have had the capacity to decide to keep her promise. There is no finding of any deterioration in her mental capacity since then. Nor has there been any relevant change of circumstances, because at the date of the marriage NC had already been convicted and imprisoned.

I well understand that all the responsible professionals take the view that it would be extremely unwise for PC to cohabit with her husband. But adult autonomy is such that people are free to make unwise decisions, provided that they have the capacity to decide. Like McFarlane LJ I do not consider that there was a solid evidential foundation on which the judge's decision can rest. We must leave PC free to make her own decision, and hope that everything turns out well in the end.

Lord Justice Richards

I agree with both judgments