4.1.1 The background to the Mental Capacity Act 2005

Some understanding of the legislative history will be helpful in understanding the MCA 2005. Until 1959, the Royal Prerogative power had allowed declarations to be made that an individual lacked capacity in either personal matters or matters of ‘property and affairs’ (essentially, financial, property, and business matters). These powers were medieval in origin, but subject to considerable statutory regulation commencing in the nineteenth century. The precise effects of a declaration of capacity in either of the personal or property and affairs spheres varied somewhat over time, but by the early twentieth century, a declaration of incapacity removed the individual’s right to make decisions in that entire sphere: a decision that the individual lacked capacity for property and affairs meant that all contracts entered into by that individual were void, whether the other party to the contract knew of the incapacity or not: Re Walker [1905] 1 Ch 160. Decisions regarding the individual would be taken by a guardian appointed by the court.

The Royal Prerogative (also called the issuance of a ‘Commission in Lunacy’) therefore gave courts considerable power over persons lacking capacity, but it took effect only if a formal order was made following an application and court hearing, and of course not all persons of doubtful capacity were brought before the courts under this process. The common law therefore developed a range of additional approaches to capacity in individual contexts as they came before the courts. For example, a contract by someone not subject to the Royal Prerogative power would be invalid only if the party lacked capacity and also the other party to the contract knew or ought reasonably to have known of this incapacity: Imperial Loan Company v Stone [1892] 1 QB 599. The legal tests of capacity also varied in these specific contexts. In contract law, for example, the tests of incapacity were left general, requiring ‘such a degree of incapacity as would interfere with the capacity of the defendant to understand substantially the nature and effect of the transaction into which she was entering’ (Manches v Trimborn (1946) 174 LT 344 at 345). This test left considerable latitude to triers of fact in individual cases. For contracts of marriage, to be discussed in greater detail at 4.4.3 significantly more guidance was provided as to what would constitute an adequate understanding of ‘the responsibilities normally attaching to marriage’ (In the Estate of Park, [1954] P 89 at p. 127; see also Durham v Durham (1885) 10 P 80, Bennett v Bennett [1969] 1 WLR 431 at 433, Sheffield City Council v E [2004] EWHC 2808). For wills, the requirement was ‘that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect’ (Banks v Goodfellow (1870) 5 QB 549 at 565), suggesting a more overtly moral overtone to the capacity determination than is evident for other contracts. These are examples, and there are as many variations as there are legal contexts in which incapacity could arise. These distinct legal precedents for mental capacity determination continue to exist and develop in their specific contexts.

While common law in its specific contexts has continued to develop incrementally and uninterrupted, the Royal Prerogative powers were abolished by the MHA 1959. Matters concerning property and affairs continued to be dealt with on the basis of capacity, much as had been the case previously. The system was placed on a less formal bureaucratic level, administered by the ‘Court of Protection’—not a traditional court at that time, but an administrative office headed not by a judge, but by a Master. Still, capacity determination in this sphere was an all or nothing affair. Either the individual had capacity to make all property-related decisions or none. As this sphere included, for example, all dealings with real and personal property, all business affairs, all contracts, and the right to retain and instruct lawyers, it remained a very wide-ranging and non-nuanced power. These powers were re-enacted as Part VII of the MHA 1983, and remained until the MCA 2005 took effect in 2007.

Originally, there was little scope for advanced planning in anticipation of incapacity. This changed somewhat with the passage of the Enduring Powers of Attorney Act (EPAA) 1985. Previously, a power of attorney was deemed to be revoked when its donor lost capacity. The EPAA 1985 allowed an individual when competent to sign a power of attorney that would continue in effect when the person ceased to have capacity, effectively allowing the individual to select who would control their assets following the donor’s incapacity. These provisions applied to matters of property and affairs only however, not to decisions relating to personal welfare; and until the MCA 2005, there was no mechanism by which an individual could determine in advance who would make personal decisions about them if they lost capacity.

The MHA 1959 dealt with personal welfare decisions very differently. It abolished the old Royal Prerogative power, which had in practice not been much used for personal decision-making anyway. Instead it introduced a new set of ‘guardianship’ provisions (see further Chapter 10, 10.3). Notwithstanding the label that attached to them (‘guardianship’ is traditionally associated with the care of people lacking capacity or children), these were not capacity-based, but instead grew out of the statutory supervision provisions of the Mental Deficiency Acts 1913, 1926, and 1939. The new powers allowed the appointment of a guardian when a person was suffering from a mental disorder (subject to some further definition) of sufficient severity, and when the appointment was warranted ‘in the interests of the patient or for the protection of other persons’ (MHA 1959, s. 33(2)). Incapacity thus did not need to be shown. Such guardianship gave the guardian powers over the individual equivalent to those of a father over a child under the age of 14 (MHA 1959, s. 34(1))—essentially, complete control over the individual’s life. In 1983, these broad powers were reduced: the guardian could now only require the individual to reside at a specific place (but not detain him or her there), to attend at specific places for treatment, education, occupation, or training (but not to consent to treatment on the individual’s behalf), and to require that doctors and specified social care professionals would have access to the individual (MHA 1983, s. 8(1)). The MHA 1983 further changed the relevant prerequisites relating to mental disorder, so that people with most learning disabilities (or ‘mental impairments’, to use the language of the Act) could only be made subject to guardianship if their condition resulted in ‘abnormally aggressive or seriously irresponsible conduct’, a requirement that continues in s. 1(2A) of the MHA 1983.

The limitations to MHA guardianship introduced in 1983 were perceived as leaving a lack of clarity as to how decisions could be taken relating to vulnerable people who could not be made subject to guardianship, or which the restricted powers of guardianship would no longer cover. How, for example, would consent to medical treatment be obtained, as this was now expressly outside the MHA guardianship regime? In response, the Law Commission began a project to investigate decision-making for people lacking capacity in 1989, eventually reporting in 1995 (Law Commission, 1995). The Commission proposed a comprehensive statute in the area, including formalising appointment of substitute decision-makers, codifying a test of incapacity and of best interests, providing a set of standards and processes regarding medical research when subjects lack capacity, codifying advance treatment refusals, and providing an enhanced Court of Protection to oversee the new law. The Commission’s work and proposals received broadly, although not universally, favourable responses (Carson, 1993; Gunn, 1994; Fennell, 1994, 1995; Freeman, 1994; Parkin, 1996; Bartlett, 1997). Nonetheless, legislative progress was slow, and at times it appeared the project had been abandoned by the government. The MCA was not actually passed into law until 2005, eventually taking effect in 2007.

In the interim, the courts had gone a long way to establishing a prospective declaratory jurisdiction relating to incapacity, which has been named the ‘inherent jurisdiction’. In practice, this corresponded broadly to the old Royal Prerogative power, although it was rather different in terms of constitutional theory. By the time the MCA 2005 was passed, the courts had developed powers to make declarations relating to incapacity, and to make binding orders as to what was in the best interests of a person lacking capacity (Re TF (An Adult: Residence) [2000] 1 MHLR 120). They had developed jurisprudence as to how incapacity and best interests were to be determined (e.g., Re A (Male Sterilisation) [2000] 1 FLR 549, Newham London Borough Council v S and Another (Adult: court’s jurisdiction) [2003] EWHC 1909 (Fam)). They had decreed that the common law allowed acts to be done in the best interests of a person lacking capacity, generally without further authorisation or consent being required (beginning with Re F (Mental Patient: Sterilisation) [1990] 2 AC 1), and had found jurisdiction to appoint substitute decision-makers for people lacking capacity (Re S (Adult Patient)(Inherent Jurisdiction: Family Life) [2002] EWHC 2278, [2003] 1 FLR 292). Necessary force could be used to ensure that the best interests were achieved (Norfolk v Norwich Healthcare (NHS) Trust [1996] 2 FLR 613; TF (Adult: Residence) [2000] 1 MHLR 120, para 47, per Sedley LJ).

In a sense, it is difficult to fault the judicial activism in this area. At the time, it appeared that the legislature had abandoned any statutory development in the area, and the pragmatic question of how decisions ought to be made for people lacking capacity was perceived as real and pressing. At the same time, the development of the new common law jurisdiction involved doubtful jurisprudence and significant bending of the relevant law (see Bartlett, 2007: ch. 2). Further, the effective recreation of powers expressly abolished by Parliament does raise constitutional questions: in a democracy, even if Parliament gets a decision wrong (as it may or may not have done in this case), is really for the courts to ‘correct’ Parliament’s presumed mistakes?

The MCA 2005 was designed to work in tandem with the common law: incapacity would be determined according to common law standards; the MCA 2005 would provide a mechanism to allow decisions to be made for people who lacked capacity according to the MCA 2005 definitions. Thus for example the probate courts have continued to make decisions about capacity to make a will according to common law standards and without expressly applying the MCA 2005: see Scammell v Farmer [2008] EWHC 1100 (Ch), Re Ritchie [2009] EWHC 709 (Ch), Carr v Thomas [2008] EWHC 2859 (Ch). Consistent with this, the Court of Protection (whose job it is to interpret the MCA 2005) has taken the position that it does not have jurisdiction to determine whether an existing will is valid: that is the job of the probate court. It can instead determine whether an individual currently lacks capacity and whether a will should be drafted by the court on his or her behalf (a power under the MCA 2005: see s. 18(1)(i)): Re D (Statutory Will) [2010] EWHC 2159 (COP). Within the scope of MCA 2005, the MCA definitions apply. Thus whether the individual lacks capacity for purposes of determining whether a will is to be drafted for him or her (an MCA power) will be determined with reference to the definitions contained in the MCA 2005, not the common law. It was hoped that the various common law standards would over time develop towards the MCA standards, so that inconsistencies would be minimised.

This approach was adopted early on in the planning of the MCA 2005, before the development of the inherent jurisdiction by the courts. The inherent jurisdiction raises particular questions, since that jurisdiction so extensively overlaps with the MCA 2005, but not necessarily with the same definitions and substantive and procedural safeguards as the MCA 2005. Consistent with the view that the MCA 2005 did not abolish common law, but was intended to exist alongside it, the courts have held that the inherent jurisdiction continues to exist (see. e.g. LBL v RYJ [2010] EWHC 2665 (COP) at 62; X County Council v AA [2012] EWHC 2183 (COP)). Quite how these two regimes will coexist remains to be seen, and the case law is as yet not entirely clear or consistent. There is a significant risk that the inherent jurisdiction will circumvent some of the more nuanced provisions of the MCA 2005. Thus for example a key element of the MCA 2005 is a statutory best interests test; but it was held in X County Council v AA that the inherent jurisdiction was not bound by this statutory framework (para. 56). It remains to be seen the degree to which the inherent jurisdiction will be used in circumstances when the MCA 2005 would not allow intervention, but it does seem that this is a distinct possibility. Thus the inherent jurisdiction has been held to apply when individuals are not incapable, but are instead vulnerable and either constrained (physically or psychologically), subject to coercion or undue influence, or otherwise unable to express ‘real and genuine consent’ (A Local Authority v Ma, Na, and Sa [2005] EWHC 2942 (Fam) (para. 78)). LBL v RYJ provides authority for the view that the inherent jurisdiction cannot be used to impose a decision on a capable person, but instead can be used only to facilitate the process of unencumbered decision-making (para. 62), but this does appear to be a universal understanding of the authority. Thus in Ma itself, the decision to preclude the vulnerable adult from travelling to Pakistan with a view to an arranged marriage was taken on a welfare basis, and in XCC v AA [2012] EWHC 2183 (COP) the court issued an order of nullity of the adult’s marriage, notwithstanding the objection of all parties to the case. In neither Ma nor XCC were the views of the individual considered. Indeed, it would seem that in both cases the court considered that the individual did not have views worth considering, a rather surprising conclusion given the finding in Ma that the individual had capacity to make the relevant decisions. In Ma, the decision was taken on the basis of a broadly defined welfare test; in XCC the decision involved both welfare and public policy relating to arranged marriages. These cases would suggest an almost unfettered power for the courts in these cases, a rather surprising outcome particularly when the individual, as in Ma, has capacity to make the decision in question.

Equally problematic is that there has been no clear cultural break between the development of the inherent jurisdiction and the passage of the MCA 2005. Thus it was held in MM, A Local Authority v MM and KM [2007] EWHC 2003 (Fam) that there was ‘no relevant distinction’ between the test of capacity in the inherent jurisdiction and in the MCA (para. 92), and the language of the best interest assessments under the inherent jurisdiction continues to appear in decisions under the MCA (see, for example, the use of the ‘balance sheet’ approach in A London Local Authority v JH and MH [2011] EWHC 2420 (COP)). The risk here is that the approach of the inherent jurisdiction is over emphasised, and the nuances of new statutory scheme are sidelined or ignored.

This raises an overarching theme for this chapter: how are common law and the statutory structure interacting, and have the spirit and letter of the MCA 2005 been carried forth into its implementation?

4.1.2 Mental capacity in international law

On its face, the use of mental capacity as a threshold of legal intervention may appear benign. It appears to divide people who are able to make decisions from people who are not, and to allow decisions to be made only for those people who are unable to make them for themselves. Those decisions must in turn be made according to the best interests (a benign-sounding term) of the person lacking capacity. A reading of the MCA 2005 suggests a nuanced approach to questions of incapacity and best interests in the statute, further buttressing this rather rosy image.

The view in international law is much more complex. In many countries, people may be found to lack capacity on limited evidence, in court proceedings of which they may have no notice. The result of the finding of incapacity may involve the loss of all decision-making authority relating to both personal and financial decisions (so-called ‘plenary guardianship’). Reassessments of capacity may be infrequent, if they occur at all. While under the incapacity order, the individual may be deprived of virtually all decision-making rights. He or she may be legally prohibited from employment. He or she will often be forced to reside in a large institution, often for the remainder of his or her life, where privacy and human comforts are minimal and where intensive physical and chemical restraints may be in routine use. In some countries, the guardian appointed for the individual’s welfare may be the director of the institution, with no acknowledgement of the potential conflicts of interest this entails (on these issues, see further Bartlett, Lewis, and Thorold, 2007: ch. 3; Mental Disability Advocacy Center, 2007, 2007a, 2007b, 2007c, 2007d, 2006).

In the last decade, questions of guardianship and capacity law have begun to be litigated under the ECHR. Unsurprisingly given the use of guardianship in much of Europe, the decisions flowing from the European Court of Human Rights in Strasbourg show significant awareness of the controlling aspects of mental capacity and guardianship regimes. It is now clear that a determination that an individual lacks capacity by the courts is sufficient to engage Art. 8 of the ECHR, and when combined with an absence of meaningful avenues to challenge such incapacitation, constitutes a violation of Art. 8 (Salontaji-Drobnjak v Serbia (Application no. 36500/05, judgment of 13 January 2010) para. 144). Even a severe mental disorder will not of itself warrant a finding of full incapacity; the mental disorder must instead be of a kind or degree warranting the deprivation of capacity (see Shtukaturov v Russia (Application No. 44009/05, judgment of 27 June 2008) para. 94). For any loss of legal capacity, Art. 6 requires that a fair judicial process must be followed, including the court actually examining the person alleged to be lacking capacity, and the provision of meaningful legal representation (Salontaji-Drobnjak v Serbia, para. 127; see also Shtukaturov). The Strasbourg court has further held that the exercise of complete and effective control over people lacking capacity can constitute a deprivation of liberty, in turn raising issues of procedural and substantive safeguards under Article 5 (HL v the United Kingdom, (Application No. 45508/99, judgment of 5 January 2005); Stanev v Bulgaria (Application No. 36760/06, judgment of 12 January 2012)). These cases serve as a salient reminder that incapacity law can be used to enforce choices onto individuals, rather than to buttress autonomy. Typically for the ECHR, the Court’s primary response is to require appropriate procedural safeguards.

This range of concerns is carried a step further by the United Nations Convention on the Rights of Persons with Disabilities (CRPD). Article 12(2) requires ‘that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life’. The word ‘enjoy’ is important here: legal capacity is not meant to be an abstract concept existing only in a rarefied jurisprudential universe; people with disabilities, including people with mental disabilities, are actually expected to be able to exercise choice in decision-making in their day-to-day lives. Article 12(3) requires states to provide people with disabilities all reasonable support in making decisions, again to ensure that the autonomy of the individual and their right to make choices is protected (on supported decision-making in the context of the CRPD, see Gooding, 2012; Dhanda, 2008). The expectation seems to be that we will move from a binary system where capacity and incapacity are juxtaposed, to one where increasing support is provided to individuals to make autonomous choices. While it may be the case that support mechanisms may become intensive in extreme cases, the expectation would seem to be that many people now considered to lack capacity under the MCA 2005 should be enabled to make decisions (Bach and Kerzner, 2010: 30; Minkowitz, 2010: 156–58). Article 12(4) requires that the support systems ‘respect the rights, will and preferences of the person’. The imposition of ‘objective’ value systems over the individual’s decisions and preferences is not within the scope of this supported decision-making system as envisaged by the CRPD. This suggests a very different approach to mentally vulnerable adults than is contained in the MCA 2005 (see Bartlett, 2012: 761–68).

Why has the CRPD taken this different course? Certainly, and consistent with the ECHR jurisprudence, it is in part because of the coercion flowing from capacity law that people with disabilities have experienced under existing legal systems. This coercion has led to serious human rights violations. Internationally, capacity is a severely tarnished brand.

The CRPD’s approach also reflects its overarching ethos of maximising the autonomy of persons with disability, and minimising discrimination against them: see Articles 3 and 5. The discrimination point is pivotal to understanding the ethos of the CRPD: equality before and under the law is a core value of the CRPD. People with disabilities are not to be subject to coercive mechanisms that are not equally applicable to people without disabilities. While ‘reasonable accommodation’ (supportive measures designed to mitigate the restrictive effects of disability) is to be available to ensure the full participation of people with disabilities in society, it does not follow that people with disabilities can be required to use the services provided by way of reasonable accommodation. Thus supported decision-making might be viewed as a clear example of reasonable accommodation, but it is at best doubtful whether it can be imposed on a person with disabilities.

Any temptation to marginalise these issues on the basis that ‘it is different in England’ should be resisted. Such a position is not sustainable legally: the United Kingdom has signed and ratified both the ECHR and the CRPD, and is bound by them. It is further not clear how different the English situation actually is. It is only with the passage of the MCA 2005 that England and Wales moved away from a plenary concept of incapacity in matters of property and affairs, and introduced any statutory structure for incapacity in personal decision-making at all. It was only in 2007, when forced to do so by the decision of the ECtHR in HL v the United Kingdom, that any formalised structures regarding the de facto detention of people lacking capacity were introduced in England (regarding these detentions, see Chapter 5). Aspects of our very recent past are therefore not dissimilar to the apparently repressive regimes elsewhere. Further, it is questionable how comprehensively the MCA 2005 is actually implemented. In the domestic litigation that led to HL, the court was told that roughly 48,000 people who were unable to consent to admission by reason of mental capacity were admitted to hospitals every year (R v Bournewood Community and Mental Health NHS Trust, ex p L [1998] 3 WLR 107, 112). This estimate did not include people de facto detained in nursing homes. In fact, between October 2011 and March 2012, there were only 1,678 requests for deprivations of liberty of people in hospital, resulting in 877 authorisations for deprivation. In the care home sector, 4,255 requests resulted in 2,400 authorisations (DH, 2012f). Even allowing that the figure presented to the court in the HL litigation may have been inflated, it would seem that large numbers of people without capacity are still in institutional settings in situations where the MCA deprivation of liberty safeguards should be, but are not being, applied. More broadly, in 2010 there were only 1,263 applications to the Court of Protection based on personal welfare issues, resulting in 218 orders (Court of Protection, 2011: table 2). It must be assumed that the vast bulk of decisions in this area are taken outside of formal judicial oversight. While it may well be unhelpful to overemphasise the value of court processes, their absence is also problematic. For example, while specific English studies on inappropriate prescriptions in nursing homes are hard to find, the literature on America and western Europe generally would suggest that roughly 40 per cent of elderly nursing home residents receive inappropriate medication (Gallagher et al., 2007; Oborne et al., 2003). Issues of human rights relating to mental capacity may well arise in an English context.

The approach of international law raises two additional overarching themes for this chapter. First, to what degree is the law relating to mental capacity to be understood as coercive? Does it buttress or diminish the autonomy of persons to whom it is subject? Second, and related, is the MCA 2005 discriminatory, by inappropriately enforcing values and outcomes onto people lacking capacity that are not enforced on the population more broadly? Are ‘good outcomes’ inappropriately enforced on this group, when similar coercion is not applied to others?

4.4.1 The diagnostic threshold

The MCA 2005 imposes a diagnostic threshold: for the purposes of the Act, any incapacity must flow from ‘an impairment of, or a disturbance in the functioning of, the mind or brain’ (s. 2(1)), be it permanent or temporary (s. 2(2)). The intention was that this would serve as a safeguard to the overuse of the MCA 2005. There is some justification for this concern. Even following the introduction of the Act, with the diagnostic criterion in effect, Williams et al. found cases in care homes for senior citizens where people were found not to have capacity based on physical disability and general frailty and vulnerability related to old age, rather than a diagnosis related to mental functioning (Williams et al., 2012: 10.2.1). This would also appear to contradict the requirement that determinations of incapacity must not be established on the basis of a person’s age or appearance, or a condition or an aspect of behaviour that would lead to unjustified assumptions about capacity (s. 2(3)). Old age of itself does not imply incapacity (see also MCA Code of Practice: 4.07).

The legislature did not anticipate that the diagnostic threshold would extend to drunkenness and related conditions. This is clear from the Act’s amendment to s. 3(2) of the Sale of Goods Act 1979, which previously read:

(2) Where necessaries are sold and delivered to a person who by reason of mental incapacity or drunkenness is incompetent to contract, he must pay a reasonable price for them.

The MCA 2005 itself included analogous provisions (s. 7), and so the words ‘mental capacity’ were deleted from the Sales of Goods Act 1979 (MCA 2005, Sch. 6 and s. 23). The word ‘drunkenness’ was not removed, suggesting that it was not to be included in the MCA provisions. Presumably, by analogy, incapacity caused by the effects of drug use would similarly be outside the MCA 2005: the diagnostic criterion was apparently to refer to a clinical illness or learning disability, perhaps broadly construed. The Law Commission perceived such a threshold as a safeguard against the overuse of the statute (Law Commission, 1995: para. 3.8).

This distinction is not reflected in the Code of Practice, which expressly includes incapacity caused by alcohol or drug use within the Act (Department of Constitutional Affairs, 2007: para. 4.12).

While the broader view of the conditions that may give rise to incapacity may be a departure from the legislative intent, it is less obvious that it is an undesirable development. The diagnostic criterion in its restricted form was always criticised in some quarters as being stigmatising of people with mental disabilities (Carson, 1993). Consistent with this, and reflecting the discrimination issues contained in the CRPD, even if capacity can be used as a concept (a complex question under the CRPD), why would people be treated according to different legal regimes according to the cause of their incapacity?

A restrictive reading may further be problematic in practice. Consider the situation of a person with a mental disability, who is taking medication for that disability which has effects which diminish the person’s capacity (e.g., by causing confusion or an inability to concentrate). A strict reading of the diagnostic threshold would require analysis of the degree to which incapacity was caused by the underlying disability, as compared to the medication. It is difficult to see that such an exercise would be practical.

Finally, decision-making for people lacking capacity for reasons outside the strict diagnostic criterion would presumably fall if not under the MCA 2005 then under the inherent jurisdiction. As noted, this regime includes remarkably similar powers to those under the MCA, but without the benefit of statutory safeguards (most notably, the nuanced statutory best interests test). It is not obvious why such an approach is desirable.

4.4.2 Processing information

The pivotal definition of incapacity is contained in section 3(1):

3(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).

Precisely what information will need to be understood will depend on the specific decision to be made. There are the beginnings of jurisprudential guidance on this, often relying on common law precedents: see, e.g., D v R [2010] EWHC 2405 (COP) (concerning capacity to make gifts and capacity to litigate), A Local Authority v A [2010] EWHC 1549 (Fam) (concerning contraception), and a variety of decisions relating to marriage and sexual behaviour to be discussed at 4.4.3. Often, and perhaps properly, the cases turn on very specific factual situations however, making general requirements for categories of decision difficult to establish.

The individual must be able to understand information relevant to the reasonably foreseeable consequences of deciding one way or another, or failing to make a decision (s. 3(4)). The Act therefore imposes the same standards of capacity for whichever way an individual is to decide: there is no different standard of capacity dependent on whether the individual agrees with professional advice, for example. The information is to be put to the individual in a way that is appropriate to his or her circumstances (s. 3(2)). It may be necessary to use visual aids or simple language, for example. Similarly, it would be necessary to provide the information in a language understood by the individual. The individual need only retain the information for a short time (s. 3(3)).

The individual must be able to ‘retain’ the information. Section 3(3) makes it clear that a person may have capacity even if only able to retain the information for a short time, but this does not solve the ambiguities around the term. The Code of Practice provides no helpful guidance on this point. Presumably, the information must be retained long enough that the decision can be made. In some circumstances (e.g., instructing an individual to pay a bill on behalf of the individual), that may be sufficient. In circumstances where ongoing consent is required (e.g., consent to medical treatment such as an injection) presumably the understanding of the relevant information is required as long as the consent is required to be in effect.

The requirement that the individual be able to ‘use or weigh’ the information ‘as a process of making the decision’ is problematic. Certainly, it may well be the case that to have capacity, an individual should be able to process relevant information to reach a decision; but this criterion, perhaps more than the others, introduces the possibility of clashes between the values of the capacity assessor or decision-maker and the values of the person of marginal capacity.

These clashes can occur in a variety of ways. Most blatantly, it may be the case that a decision that is viewed as inappropriate is taken to bespeak incapacity. This should not occur. The MCA 2005 specifically provides that an individual should not be taken to lack capacity ‘merely because he makes an unwise decision.’ (s. 1(4)). Nonetheless, there is a persistent set of claims that this standard is, in practice, used frequently. Physicians, for example, are alleged often to be content to treat a patient as competent so long as they are accepting treatment, but incompetent if treatment is refused (see, e.g., Law Commission, 1995: para. 3.4; Gunn, 1994: 16; Roth et al., 1977: 281). More recently, Williams et al. note the frequent close connection between capacity determination and best interests assessments, which they call the ‘concertina effect’, with capacity determination blurring into other issues relating to the individual’s care (Williams et al., 2012: 3.2, 3.4). Indeed, in some of Williams’ survey, best interests determinations were made under the Act with no reference to a finding of incapacity at all. The risk here is that capacity law becomes a mechanism for care providers to enforce ‘right’ decisions onto people, suggesting a much more controlling function of the MCA 2005 than was apparently intended by the legislators. The courts have acknowledged this risk. In CC v KK and STCC [2012] EWHC 2136 (COP), a case involving the choice between care home and independent living, the court found that the local authority ‘may consciously or subconsciously [have attached] excessive weight to their own views of how her physical safety may be best protected and insufficient weight to her own views of how her emotional needs may best be met.’ (para. 67).

Issues of the individual’s ability to ‘use or weigh’ information also appear when the individual’s choice is perceived not to flow from his or her actual will. Sometimes, this will flow from the effects of a mental disorder itself. In A Local Authority v E [2012] EWHC 1639 (COP), E suffered from anorexia, and the issue was whether she had the capacity to refuse further treatment for that condition. There was no doubt that she could understand and retain the relevant information. It was held however that she was compelled by reason of her disorder not to allow calories into her system: ‘[t]‌he need not to gain weight overpowers all other thoughts.’ (para. 49). For this reason, she was unable to use or weigh the relevant information, and lacked capacity.

While the logic of the reasoning is clear, it is not unproblematic. While the reasons for E’s refusal of further nutrition are intimately bound up with the nature of her disorder, the diagnostic criteria of the disorder are such that it is difficult to see on this logic how a person with anorexia could ever not be incapable to refuse nutrition. Presumably, such an individual would be competent to decide to eat, however, since this would mean that the disorder would not have the overarching effect it was said to have in E’s case. It feels somehow wrong that an individual would almost by definition be competent to consent to, but not competent to refuse, a proposed action. The logic also risks marginalising any competent reasons the individual might have for refusing treatment. In E’s case, she had been undergoing treatment for 17 years, and frequent and intensive treatment for the six years preceding the hearing. She viewed the treatment as unsuccessful (with some justification—she continued to have the anorexia and its associated problems), and that it was unlikely that she would successfully attain her goals and aspirations for her life. While she at no time expressed a wish to die, she expressed a firm wish not to be treated under compulsion. While these views make for sad reading, they do not obviously indicate a lack of capacity. E’s parents stated (E, para. 52):

It seems strange to us that the only people who don’t seem to have the right to die when there is no further appropriate treatment available are those with an eating disorder. This is based on the assumption that they can never have capacity around any issues connected to food. There is a logic to this, but not from the perspective of the sufferer who is not extended the same rights as any other person.

The circular logic referred to can apply to other disorders as well, and one therefore might question whether it is only people who have an eating disorder who are denied the right to die or make other fundamental decisions about their lives. Nonetheless, the sentiment of the parents raises serious challenges to the judicial logic.

In other cases, the will of the individual is taken to be submerged through the overbearing influence of others. In A Local Authority v A [2010] EWHC 1549 (Fam), for example, the issue was whether Mrs A had the capacity to consent to contraception. The Court held that Mrs A was capable of understanding and retaining the information relevant to making a decision regarding contraception, but because of the overbearing personality of her husband, Mr A, it was not clear whether the decision was really her own. Both Mr and Mrs A had intellectual disabilities. The facts of the case are complex and not entirely clear. It would seem that they both wanted a child, although Mrs A had said that this would be the case only if she were allowed to keep the child (two children, born to her in other relationships, had been put up for adoption). There was further evidence that she feared eviction from Mr A’s house if she refused to have a child. Mr A viewed the role of a husband as being the dominant partner in the relationship, and being protective of his wife, and it would seem that Mrs A was content with that. Mr A was increasingly hostile to social services intervention, which he perceived as unduly intrusive in their lives; Mrs A, it would seem, was somewhat less hostile in this regard. There were contested allegations of violence against Mrs A by Mr A. Bodey J held, ‘[i]‌n view of what I find to be the completely unequal dynamic in the relationship between Mr and Mrs A, I am satisfied that her decision not to continue taking contraception is not the product of her own free will’ (para. 73).

The question here is whether the dominance of one party to a relationship can properly be considered to affect an individual’s mental capacity. No doubt in many relationships where neither partner has a mental disability, the decision to have children or to take contraception is complex and fraught with tension. Power dynamics in many relationships place one partner on a different footing than another, and domestic violence, most frequently of men on women, remains a social fact. This may be morally repugnant, but it is not news, and it is not restricted to relationships where an individual has a mental disability. The question is whether capacity law should be used to control some relationships involving people with mental disabilities, when no such controls are imposed on other relationships. To phrase the issue slightly differently, is the appropriate question to be asked in this case not about capacity at all, but instead whether the risks to Mrs A are such as to warrant adult safeguarding interventions? If that is the really the issue in the case, then either there is sufficient evidence for intervention or there is not; and if there is not, is it really appropriate that capacity law be introduced as a mechanism of control when the conditions for safeguarding intervention are not met?

It would further seem to be only pressure applied by family members or occasionally friends that is taken by the courts to vitiate the will to the extent of depriving the individual of capacity. The vulnerable individual may also feel pressured, however, by professional carers such as social services or medical staff. Particularly when the vulnerable person is in an institution or similar environment, such pressure can be felt particularly acutely, but the courts do not appear to view these as affecting the individual’s capacity. One hopes that such pressures are not applied maliciously, but equally, it is rare that the courts find the behaviour of the controlling family members to be malicious. A may illustrate the ambiguities of professional advice. The court declined to make an order as to Mrs A’s best interests, on the basis that compulsory birth control would be ‘a horrendous prospect’ (para. 74). Instead, it held that ‘[i]‌n such a sensitive area, it is difficult if not impossible to envisage any acceptable way forward on these particular facts, other than by an attempt to achieve a capacitated decision from Mrs A, through “ability-appropriate” help and discussion without undue contrary pressure from Mr A’ (para. 75). While the provision of support in reaching a capable decision is among the principles of the MCA 2005 (s. 1(3)), the ‘help and discussion’ here will be provided despite the apparent objections of Mr and Mrs A. In such circumstances, it is difficult to see how they will view it as anything other than coercive, and it is fair to wonder how effectively the professionals will separate their views of Mrs A’s best interests from her own capable decision. If the objective is to consider the will of the individual divorced from controlling influences, ought we also to be considering the influence of these professional carers on the individual?

This statutory framework draws heavily on the common law test for capacity to consent to medical treatment (see, e.g., Re C (Adult: Refusal of Medical Treatment),[1994] 1 All ER 819; Re MB (Medical Treatment) [1997] 2 FLR 426). The significant departure of the statutory test is that, unlike the common law test, there is no express requirement that P believe the information provided. In Local Authority X v MM and KM [2007] EWHC 2003 (Fam), the court held that belief was contained in the statutory test by implication (para. 81):

If one does not “believe” a particular piece of information then one does not, in truth, “comprehend” or “understand” it, nor can it be said that one is able to “use” or “weigh” it. In other words, the specific requirement of belief is subsumed in the more general requirements of understanding and of ability to use and weigh information.

The first sentence in this quotation is profoundly unconvincing. An individual may well not believe in Darwin’s theory of evolution; that does not mean that he or she does not understand or comprehend it. There are further many reasons why an individual may not believe information. In R (PS) v G (RMO) and W (SOAD) [2003] EWHC 2335 (Admin), for example, the doctor changed her diagnosis of the patient, and the patient continued to believe the previous diagnosis rather than the revised diagnosis. He may or may not have been correct; but his failure to accept the new diagnosis in preference to the previous one does not necessarily bespeak incapacity. The reason for the non-belief seems pivotal here. If an individual fails to believe his or her doctor on the basis that the doctor is inexperienced, for example, it does not follow that the individual lacks capacity. If, on the other hand, the individual’s lack of belief is the result of psychosis (that the doctor is controlled by the CIA, for example), the individual may well lack capacity, and certainly, the false belief would be highly relevant to the determination of capacity.

The requirement of belief again highlights the clash between the values and approach of professional carers in juxtaposition to the individual whose capacity is at issue. The individual is required to adopt the approach of the professional in their understanding of their situation. If they do so, it seems likely that they will do as they are told by the professional. If they do not, they will be found to lack capacity, and the decision will be taken in their best interests. Objective factors in the best interest assessment are likely to give considerable respect to the views of the professional, and P is likely therefore end up doing as the professional wants. Particularly in situations where sensible people may disagree with the information provided, it is difficult to see that this buttresses individual autonomy.

The introduction of belief into the MCA 2005 by the courts is perhaps indicative of the influence of medical treatment decisions in the development of capacity law. There is an established tradition of trusting ones doctor and of judicial deference to the medical profession. The cases about belief seem most convincing when they are in the context of treatment for a mental disorder: if a patient does not believe that he or she is suffering from such disorder, reliance on his or her decision regarding treatment is intuitively discomforting. The MCA 2005 is not limited to medical decision-making, however, but includes other personal decisions, as well as those related to property and affairs. If we expect capable patients uncritically to believe their doctors when they provide advice as to diagnosis and treatment, would we require a similarly uncritical belief in the advice about investments provided by a stockbroker, particularly where the person whose capacity is at issue had significant experience of investments? If not, why would we insist on uncritical belief of medical advice when patients have long experience of their condition, but may view it differently from the doctor?

As noted, belief was included in the common law formulation of the test for capacity. Its omission from the statutory test can hardly be seen as accidental. While the convergence of the MCA 2005 with the common law was foreseen in the development of the legislation, the expectation was that common law would stretch to meet the MCA 2005. This would appear to be an example of the reverse occurring, with the statute being bent to fit the common law.

4.4.3 A case study: Capacity, sex, and marriage

Much of the jurisprudence regarding capacity determination in recent years has occurred in the context of consent to sexual activity and to marriage. These cases warrant consideration not merely because they are interesting in their own right, but also because they present a variety of issues of relevance more broadly in considering and assessing the MCA 2005.

Until 2004, there had been little recent litigation on the level of capacity required to marry. In the Estate of Park, decd [1954] P 112 affirmed that to have capacity in this context, one had to understand ‘the responsibilities normally attaching to marriage’ (127). There had been little jurisprudence on what those responsibilities were since Sir James Hannan held in Durham v Durham (1885) 10 P 80 (82):

I may say this much in the outset, that it appears to me that the contract of marriage is a very simple one, which does not require a high degree of intelligence to comprehend. It is an engagement between a man and a woman to live together, and love one another as husband and wife, to the exclusion of all others. This is expanded in the promises of the marriage ceremony by words having reference to the natural relations which spring from that engagement, such as protection on the part of the man, and submission on the part of the woman.

This passage serves as a reminder that what must be understood in order to have capacity is socially determined. While this passage reflects nineteenth-century roots, it is difficult to see that the more modern articulations to be discussed in this section are any less socially specific. In this sense, capacity cannot be understood in a hermetically sealed legal universe. Even in its nineteenth-century context, the quotation also represents an idealised vision of marriage: Victorian men were not always protective and Victorian women not always submissive. As choices are made about what needs to be understood to have capacity in a specific context, how much should those choices reflect idealised values, and how much the actual experiences that people will encounter in their lives?

While these questions are particularly clear regarding marriage, they apply to the full range of decision-making. For example, clearly the likely clinical outcomes of medical treatment will be relevant to a decision to consent to treatment, but so will a wide variety of other factors relating to social, political, and individual culture and morality. Decisions regarding abortion or birth control are clear examples here, but they are only examples. A perusal of a good medical law text will provide an indication of the complexities relating to treatment availability and consent. Similarly, many people who invest money are influenced by factors beyond a simple calculation of best available return on investment. Whether we restrict the determination of capacity in the former case to purely clinical factors or in the latter to an ability to assess likely financial returns, or expand the required understanding to include an ability to understand the wider array of criteria is a social choice, as much as deciding the responsibilities attaching to marriage is.

The collection of cases relating to sex and marriage commence shortly before the passage of the MCA 2005, with the case of Sheffield City Council v E [2004] EWHC 2808 (Fam). The case involved an intellectually and physically disabled woman, aged 37, who had moved in with and intended to marry a man who had a significant record of convictions for sexual crimes and sexual violence. Social services had become concerned at the risk that the relationship had become abusive, and commenced proceedings under the inherent jurisdiction to prevent the marriage. This motivation reflects the ambiguities discussed between capacity determination and best interests, and between the MCA 2005 and adult safeguarding. The protection of the vulnerable person from harm in relationships viewed by social services as inappropriate is a consistent theme in the roughly 10 cases relating to sexual and marital capacity since E. Often, as in E, there are cogent reasons for the concerns of social services; but it does return us to the question raised regarding A (see 4.4.2) of whether capacity law in England buttresses the autonomy of people lacking capacity, and how much instead it controls them.

The key question in E was therefore whether capacity to marry was to be assessed only in terms of an ability to understand the duties attaching to marriage generally, or also the likely implications of marrying a specific individual. That is a topic that has attracted subsequent litigation, and will be returned to. In addition, however, the Court provided a reassessment of the required understanding of marriage generally. It reasserts that the contract of marriage is a simple one, able to be understood by anyone of normal intelligence (para. 68). After noting the modern views regarding gender equality in relationships, it goes on to hold (132):

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.

This phrasing certainly represents an advance on the articulation of the duties of marriage in Durham, reflecting mainstream modern understandings of gender equality and relationships. As the Court commented in MAB about the test in E, ‘[t]‌he fact is that the wife is no longer the weaker partner subservient to the stronger. Today both spouses are the joint, co-equal heads of the family’ (para. 58).

The test in E is of course no less socially located than the Durham test, and while it reflects the position in much of modern English society, it does not necessarily reflect the modern cultural heterogeneity. A number of the other recent cases relating to marriage concern arranged marriages under Islamic law. In these cases, the courts sometimes acknowledge that the understanding of marriage is culturally distinctive, as in the case of XCC v AA [2012] EWHC 2183 (COP) where the court notes that in the Bangladeshi community from which the litigants were drawn, broader family relationships and roles in marriage were highly relevant (para. 9):

DD lives in a very traditional family in a close-knit community not integrated, by and large, into the non-Bangladeshi local community....They are devout Muslims. I found that DD is a loved and valued member of her family and that her parents are devoted to her. The family is bewildered and disconcerted that they are seen as having done anything wrong, and that what they have done may be seen as contrary to DD’s best interests. In my December 2010 judgment I accepted that in DD’s parents’ culture it is considered a duty of parents to arrange for their children to be married and that disabled children are found spouses so that they can be provided for when the parents are unable to do so.

This would seem to be a substantively different relationship from that described in E. Where the assumption in E is of independent and autonomous individuals forming an equal partnership, the context in AA and similar cases is of care relationships within an extended family, and the marriage serving to ensure ongoing protective care for a vulnerable family member. The juxtaposition of the two cases reinforces the point made regarding Durham: decisions regarding capacity take place in social contexts. This is not the place to enter into a discussion of the merits and problems of either the E or the AA model of marriage; but it does raise the question of whether the relationships are sufficiently different that different tests of capacity ought to apply. Is the application of the E test to the conception of marriage in AA as inappropriate as the application of the Durham test to E? As yet, the courts have not seen fit to establish different tests (see, e.g., Westminster v IC, KC [2007] EWHC 3096 (Fam), para. 32). The appeal of a common test is its universality of application, and at least superficially non-discriminatory nature. The difficulty is that participants in the culturally different marriages described in the cases may be assessed according to a test that does not reflect the relationship they are about to enter.

The social factors associated with the decision are particularly clear in the case of marriage, but they may extend much more broadly in personal and property-related decision-making. Many people make investment decisions based on a wide variety of factors, for example, not just financial return. The factors involved in deciding where and with whom to live may similarly be multi-faceted, including choices between independence and co-habitation (with family, friends, or romantic partners), the perceived desirability of various locations, and the economic ramifications of various housing possibilities. Whatever choices are made regarding the information required to determine capacity, they will be value-laden, just as the choices for marriage are.

Sex is commonly considered to be part of marital relations, and thus capacity to have sexual relations has been held to be a part of the capacity to marry (Re MAB, X City Council v MB [2006] EWHC 168 (Fam), paras. 53–4, 84). Capacity for sexual relations is nonetheless subject to its own test of capacity. Here, the jurisprudence presents a variety of different and not entirely consistent approaches. Re MAB was another case involving an arranged marriage, this time of a man with pronounced autism. The Court cites with approval the following formulation of what must be understood to have capacity for sexual behaviour (para. 86, approved in para. 91):

Such information might include basic knowledge about the risks of pregnancy, sexually transmitted diseases; some understanding of what is involved in sexual activity; and an understanding of the nature of the relationship they have with the other party.

This formulation leaves open the key question of what constitutes ‘the nature of the relationship’. In A Local Authority v H [2012] EWHC 49 (COP), it was held that human sexual conduct was distinguishable from that of other animals because of its emotional and moral components, noting that victims of sexual assault refer generally to emotional damage and moral violation more than physical injury (para. 20), although the court shied away from articulating tests in these regards beyond a requirement that the individual understood that he or she had a choice as to whether to engage in the activity (para. 25). In D Borough Council v AB [2011] EWHC 101 (COP) it was held that ‘an awareness that sex is part of having relationships with people and may have emotional consequences’ was specifically not required for an individual to have capacity to consent to sexual activity (para. 37). That case further held that capacity does not require an understanding that sexual activity must be consensual, and must only be engaged in by persons over the age of 16 years (paras. 38–40): all that is required, according to the case, is a knowledge of the mechanics of the relevant sexual acts, a knowledge of the health risks, and where the act is potentially procreative, a knowledge that it can lead to pregnancy (para. 42).

The move away from criteria based on morality and emotions in H appears to flow largely from questions of practicality: how can one ensure that the law is regulating capacity, rather than morality? Whether by accident or design, this fits with the overall ethos of the capacity test both at common law and under the MCA 2005: it refers to the ability to understand, retain, and use information, and as such it is primarily about the ability to make a rational decision. This undoubtedly has advantages in terms of legal practicality: relevant information can be identified, and reasoning processes analysed. While it should now be clear that these are not value-free exercises, they can be done in a reasonably transparent manner. The sex cases however highlight a limitation of this approach: a visitor to a student pub on a Friday night is likely to get the impression that decisions relating to sexual conduct are not actually made in the detached, self-reflective, and rational way that this capacity model implies. The choice to engage in sexual activity or not tends to involve emotional factors—be that a ‘phwoar factor’ or an expression of romantic love—much more than a retention and reasoned application of information. Insofar as the test does not reflect how decisions are actually made, it is arbitrary: of people making similar decisions for similar reasons, some will be precluded because they fail a test not related to how the decision is actually being taken. It is difficult to see that this is justifiable.

While sexual behaviour is a particularly clear example of this difficulty, it is a problem that extends much more broadly in decision-making. Psychologists are increasingly aware of the role of emotions in decision-making generally, to the point where the distinction between reason and emotion is almost viewed as irrelevant (see, e.g., Damasio 1994, 2000). Insofar as that is the case, the example of sexual decision-making becomes an example of a much larger problem, and the current concept of capacity is open to question.

Among the most litigated aspects of capacity relating to both sex and marriage is the question of whether the determination of capacity relates to the activity in general (e.g., understanding the nature of marriage, or the sexual activity contemplated) or whether the individual must also understand the likely ramifications of engaging in the activity with a specific person. Here again, the cases flow from situations where the proposed spouse or sexual partner is perceived, generally with considerable justification, as an inappropriate or indeed dangerous choice. In the case of E, for example, does the individual merely need to understand what marriage is about, or does she need to understand that marriage to this individual might well result in sexual and other domestic violence?

In E, the court holds that the determination of capacity refers to the act in general, and factors relating to the other partner are irrelevant. It finds that no contrary position is to be found in the earlier jurisprudence relating to marriage, and that the contract entered into by spouses was uniform in all cases, containing the same rights, duties, and obligations. Cases concerning consent to medical treatment, where it did seem that one could be competent to consent to some treatments and not others, were distinguishable. First, where the marriage contract was a constant between all marriages, medical treatment varied considerably according to the disorder affecting the individual. Second, medical treatment involved technical information requiring the advice of a professional, where the contract of marriage was a simple one that a lay person could be expected to understand. Perhaps more convincing is the court’s concern that a person-specific approach risked collapsing the question of capacity with that of best interests (para. 92): if the court were expected to determine whether E had the capacity to marry one person rather than another, this would almost inevitably become indistinguishable from the question of whether it was a good idea for E to marry one person rather than another.

A similar finding for similar reasons was made regarding consent to sexual activity in Re MM, A Local Authority v MM and KM [2007] EWHC 2003 (Fam), para. 87. On this authority, one has capacity to consent to the relevant sexual act, irrespective of who the intended partner is.

A different approach was taken in R v Cooper [2009] UKHL 42, a case arising not under the MCA 2005 or inherent jurisdiction, but under the prohibitions of sexual activity with a person with a mental disorder impeding choice, contained in ss. 30–33 of the Sexual Offences Act 2003. That case involved criminal charges relating to sexual activity with a woman with an intellectual disability, a personality disorder and a schizo-affective disorder. The evidence was that these conditions, coupled with threats from the accused, rendered her unable to refuse consent to the sexual activity. Relying to a significant degree on MM, the Court of Appeal held that ‘[i]‌rrational fear that prevents the exercise of choice cannot be equated with lack of capacity to choose’, and that as capacity is not person-specific, so it was also not situation-specific ([2009] 1 Cr App R 211, para. 53).

Baroness Hale, speaking for a unanimous House of Lords, disagreed (para. 27):

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....The object of the 2003 Act was to get away from the previous ‘status’-based approach which assumed that all ‘defectives’ lacked capacity, and thus denied them the possibility of making autonomous choices, while failing to protect those whose mental disorder deprived them of autonomy in other ways.

While these comments were made in the context of the Sexual Offences Act 2003, Baroness Hale expressly doubted the correctness of the reasoning in MM on this point (para. 24).

Since Cooper, a number of cases in the Court of Protection have considered the question, with divergent results. In D County Council v LS [2010] EWHC 1544 (Fam), the court held that Cooper applied to determinations of capacity relating to sex and marriage under the MCA 2005. When the characteristics of the partner were such as would impede or deprive the individual of the ability to make a choice, the individual would lack capacity, but mere unsuitability of a prospective spouse or sexual partner would not be relevant to such a determination (paras. 40–42). In D Borough Council v AB, [2011] EWHC 101 (COP), the Court held that it did not follow from the fact that sex was person-specific that determination of capacity for sexual behaviour was person-specific, and followed MM rather than Cooper (para. 36). In A Local Authority v H [2012] EWHC 49 (COP), the Court based its approach on the difference between the criminal and MCA 2005 contexts (para. 22):

In the criminal law it arises most commonly in respect of a single incident and a particular person where the need to distinguish between capacity and consent may have no significance on the facts. In a case such as the present, however, capacity has to be decided in isolation from any specific circumstances of sexual activity as the purpose of the capacity enquiry is to justify the prevention of any such circumstances arising.

As noted, it declines to introduce an aspect of the determination based on moral or emotional elements, resulting in a finding that the determination is neither person- nor situation-specific.

The reasoning of the Court in H has the advantage of considering the relative roles of the criminal law, as compared to the MCA 2005. The Act has a highly limited role in this area. The MCA 2005 was not designed to supplant the existing determinations of mental capacity, but to sit alongside them, providing a mechanism by which decisions could be made on behalf of persons lacking capacity as defined in the Act. Consent to sex and marriage are specifically excluded from the decision-making powers of the MCA 2005 (s. 27(1)(a) and (b)), making it unclear why the MCA is relevant at all. The fact that other decisions in these areas, including LS, AB, and H itself, purport to rely on the MCA 2005 suggests the Act’s expanding influence in the capacity field.

If the MCA 2005 and the Court of Protection have a role in these areas, it is not in the context of substitute decision-making for P (the person lacking capacity). The role, if any, is to ensure the prevention of illegal sex or marriage occurring, as the Court in the quote from H states. If however the restriction is focused on the illegality of the sexual activity, however, the test must be the criminal test of the legality of the activity. It is difficult to see that the Cooper approach can be avoided. In practice, it would seem that fewer people will lack capacity under MAB than under Cooper, and MAB therefore allows sexual congress that is illegal under the criminal law. It is difficult to see that allowing such activity, as the courts currently appear to intend, is a coherent position.

The resulting position is complex and inconsistent. It would seem that the applications are motivated by adult safeguarding concerns. None of the cases involve activity that, but for incapacity of one of the parties, would be considered healthy or normal. For example, it would seem that sexual activity between elderly married couples, one of whom lacks capacity because of dementia, is fairly common (for a discussion, see Bartlett, 2010). While this activity is as illegal under the Sexual Offences Act 2003 as the activity in Cooper, it is conspicuously absent from the Court of Protection case law, presumably because rightly or wrongly, it is not perceived raise the same issues of safeguarding as those where the sexual activity is combined with a risk of domestic violence or similar additional difficulties.

If the motivation for the applications is safeguarding, however, the results are more ambiguous and nuanced. The apparent rejection of Cooper in favour of MAB appears to limit the safeguarding function of the Court, not to expand it. Even in A, while Mrs A was held to lack capacity to consent to contraception, the Court declined to order mandatory contraception [paras. 74–79]. Thus while the motivations of the applications appear to involve safeguarding, and while the Court appears clearly concerned about that, the results are not simply controlling of persons of marginal capacity. These tensions continue in the discussion of best interests determination, to which this chapter now turns.

4.5.1 Best interests, families, and independent living

The competing interests and criteria in best interests assessments are particularly clear in decisions regarding accommodation. Typically, these disputes involve a choice between care in institutional settings (generally care homes) and by family members, although occasionally cases arise involving independent living (for example, in a flat with appropriate support provided).

The tension between family carers and institutional care raises issues relating to the right to private and family life under Article 8 of the ECHR. While the courts have acknowledged the right to family life, attaching both to P and to P’s family, they have been hesitant about according it particular priority in making best interests determinations regarding family care. The approach of the courts is that decisions should be taken under the MCA 2005, and then subsequently the analysis should be undertaken as to whether the result is consistent with Article 8: see K v LBX [2012] EWCA Civ 79.

The courts have been hesitant about expanding Article 8 rights in this area in any event, at least once the family members reach adulthood and thus have the right to determine with whom he or she will associate. The point was made as follows in Re S (Adult Patient) (Inherent Jurisdiction: Family Life) [2002] EWHC 2278 (Fam), a case under the court’s inherent jurisdiction (para. 37):

If a father and his adult daughter wish to enjoy the type of normal family relationship that the State is obliged by the Art 8 guarantees of respect for each party’s private and family life not to interfere with arbitrarily, then all well and good. But if for whatever reason, good or bad, reasonable or unreasonable, or if indeed for no reason at all, the daughter does not wish to have anything to do with her father, then he cannot impose himself upon her, whether by praying in aid his Art 8 right to respect for family life or his Art 8 right to respect for that part of his private life which entitles him in principle to establish and develop relationships with other human beings. His daughter can pray in aid against him her Art 8 right to respect for that part of her private life which entitles her to decide who is to be excluded from her ‘inner circle’ – and in that contest, because she is a competent adult, her Art 8 rights must trump his.

This must be correct: if an individual has capacity, he or she may determine with whom he or she associates. If the both the daughter and the father in the example wish to maintain a close family relationship, however, the state’s interference with that would impinge on the Article 8 rights of both.

The S case takes the view that the decision of P, the person lacking capacity, regarding continuation of family relationships and Article 8 rights falls to the state, and is determined pursuant to P’s best interests under the inherent jurisdiction of the courts (now, presumably, instead under the MCA 2005). This is not a satisfying approach. P’s emotional connections to his or her family or non-familial carers may well be intense and meaningful, and quite separate from his or her capacity to make decisions regarding accommodation or contact. It is at best counterintuitive that P would cede determination of those rights to the decision-maker under the MCA 2005 in those circumstances. It should be noted here that this does not necessarily leave P potentially defenceless in a dangerous situation. Article 8 rights are qualified, and state action would be justified in the event of risk, for example, to P’s health. The acknowledgement of P’s Article 8 rights would, however, give a different primacy to the family relationship in the event that it was mutual and strong.

There is an ambiguity in the case law as to whether there is any sort of preference to be given in law to care provided within the family. The S case acknowledges that families can bring elements to care that cannot be provided by institutions, leading to a starting assumption that family care is preferable to institutional care, but not a presumption to this effect (para. 48). That said, the traditional position was that any starting assumption was not necessarily strong, as the courts also held that no deficiency in the care provided by a family need be shown for a removal to institutional care, but merely a determination that such a placement was in the best interests of P (see London Borough of Newham v BS [2003] EWHC 1909 (Fam)). More recently, courts have at least occasionally approached family care with a more sympathetic eye. Thus in Hillingdon LBC v Neary [2011] EWHC 1377 (COP), the court held (24):

Decisions about incapacitated people must always be determined by their best interests, but the starting point is their right to respect for their family life where it exists. The burden is always on the State to show that an incapacitated person’s welfare cannot be sustained by living with and being looked after by his or her family, with or without outside support.

How secure this apparent shift will be remains to be seen. Recently, the Court of Appeal has returned to the traditional position, that the determination of best interests is focused on the criteria in s. 3, without any express starting point on the desirability or lack thereof of care within the family (see K v LBX [2012] EWCA Civ 79).