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Care home briefing 124 – Mental Capacity Act decisions: To what extent are they person or act specific?

It is well known that the assessment of capacity to make decisions under the Mental Health Act is decision specific. However, what components have to be taken into account when considering the relevant specifics? A recent case has looked at this in the context of decision making as to living with a marital partner.[1]

The Facts

PC married NC whilst he was serving a term of imprisonment for sexual offences (which he had always denied), having previously lived with him briefly. She wished to live with him when he was released from prison, and in anticipation of this, the Local Authority commenced proceedings seeking a declaration as to her capacity, prior to the release of NC, as it considered PC was at risk from NC.

At first instance, the Judge concluded that as a result of her learning disability, PC lacked capacity to make the decision about cohabitation with NC, even though she had capacity to marry him in 2006.

The decision was appealed on the following grounds:

1. The Judge had considered the wrong question when considering whether PC had capacity to resume married life. Instead, he should have considered the matter in the context of care, contact and residence.

2. Insufficient weight had been given to the fact that PC and NC had married in 2006.

3. The Judge had wrongly applied a person specific, rather than an act specific test in determining capacity.

Court of Appeal Decision

The Court of Appeal considered that it was settled law that capacity to marry is act rather than person specific. However, the Court rejected any act specific or person specific distinction, other than those established by Common Law or expressly provided for in the Mental Capacity Act.

The decision of a wife to live with her husband was the issue in respect of which capacity had to be decided here. The information relevant to that was held by the Court to include matters specifically relevant to the particular wife and the particular husband. Although the Judge at first instance had said that PC was unable to understand the potential risk that NC presented, and was unable to weigh up the relevant information about this, the Court did not consider that the evidence was sufficient to sustain that decision and thus allowed the appeal.


The case clearly provides helpful guidance on residence decisions by those who are married.

It is also now clear that unless the Common Law or the Mental Capacity Act expressly state to the contrary, there is no act specific or person specific distinction when assessing an individual’s capacity to make a particular decision. Capacity is simply “decision specific” and whether a particular category of information about the act or the person is relevant, depends on the nature of the decision being made.

Andrew Parsons

t: 020 7227 7282
May 2013
© RadcliffesLeBrasseur

[1] PC & NC –v- City of York Council [2013] EWCA CIV 478


This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.

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