PC v City of York Council  EWCA Civ 478,  MHLO 61
"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."
The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.
MENTAL DISORDER — Decision to cohabit — Capacity — Wife with significant learning disabilities marrying husband serving prison sentence for serious sexual offences — Husband released on licence assumed to pose risk to wife if cohabiting — Whether wife having capacity to decide to cohabit — Judge ruling wife lacking capacity to decide but welfare best served by resuming cohabitation within approved scheme of monitoring or support — Whether judge applied correct test for capacity — Whether test for capacity person specific or act specific — Mental Capacity Act 2005 ( c 9) ss1-3
PC (by her litigation friend the Official Solicitor) and another v City of York Council
B ;  WLR (D) 176
CA: Richards,McFarlane,Lewison LJJ: 1 May 2013
The test for whether a person had capacity under the Mental Capacity Act 2005 to decide was specific to the decision in question in its particular factual matrix and context.
The Court of Appeal so stated, inter alia, when allowing the appeal of PC and NC against a decision of Mr Justice Hedley in the Court of Protection on 20 July 2012 that PC did not have capacity under the Mental Capacity Act 2005 to decide to cohabit with NC, her husband, on his release on licence from prison but that under the jurisdiction of the Court of Protection it was in her best interests to resume cohabitation within an approved scheme of monitoring and support by the local authority. PC, a woman with significant learning disabilities, married NC when he was in prison for serious sexual offences. NC was released on licence. The local authority asserted that despite having capacity to marry nevertheless PC lacked capacity to decide to cohabit with him. The judge agreed. Before the appeal court PC and NC argued that the judge should not have applied a person-specific test looking at PC’s capacity to decide to cohabit with a single individual, NC. Rather the judge should have applied an act-specific test and considered whether PC lacked capacity to decide to resume cohabitation with any person.
MACFARLANE LJ said that the course adopted by the judge on the nature of the jurisdiction under the 2005 Act was correct. The determination of capacity under Part 1 of the Act was decision specific. All decisions, whatever their nature, fell to be evaluated within the straightforward and clear structure of sections 1–3 of the Act which required the court to have regard to “ a matter” requiring “a decision”. There was neither need nor justification for the plain words of the statute to be embellished. His Lordship did not accept the submission that there was 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 was capacity to decide whether or not to have contact with, or reside with a, a particular spouse. One, capacity to marry, involved understanding matters of status, obligation and rights, the other, contact and residence, might well be grounded in a specific factual context. The process of evaluation of the capacity to make the decision should be the same, but the factors to be taken into account would differ. The judge was correct to fix his attention upon the actual decision in hand. Where the decision concerned whether a wife was to go to live with her husband, the relevant information had to include that which was specifically relevant to the particular wife and the particular husband. The core determining provision was section 2(1) of the 2005 Act. Section 2 (1) was the single test, albeit that it fell to be interpreted by applying the more detailed description given around it in sections 2 and 3. The judge seemed to have approached the statutory scheme by considering section 2(1) and section 3(1) as separate, albeit related tests, rather than affording central prominence to section 2(1). Approaching the issue in the sequence set out in section 2 (1), the first question was whether PC was “unable to make a decision for herself in relation to the matter”. On the evidence, the judge’s conclusion was not sustainable and the assessment of capacity under section 2(1) fell at the first of the two component parts. The appeal would be allowed.
LEWISON LJ and RICHARDS LJ agreed.
Appearances: Paul Bowen QC and Joseph O’Brien (instructed by Langleys Solicitors LLP, York) for PC ( by her litigation friend the Official Solicitor). Jonathan Butler and Eliza Sharron (instructed by Switalskis LLP, York) for NC. Conrad Hallin (instructed by Melanie Perara, Principal Solicitor, York) for the local authority.
Reported by: Alison Sylvester, Barrister.
© 2013. The Incorporated Council of Law Reporting for England and Wales.