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Landmark Court of Appeal Case on Court of Protection: Sex and Marriage


PC (by her litigation friend) & NC v A Local Authority

Jonathan Butler and Eliza Sharron appeared on behalf of NC (the husband of PC) instructed by Francesca Gardner (Switalskis) in this landmark case concerning the question of whether decisions under the MCA 2005 are person or act specific and whether consent to marry includes consent to cohabit. In this case, the Court at first instance imposed restrictions on PC’s marriage to NC after finding that PC lacked capacity to consent to resume cohabitation, given the serious sexual risk that NC presented. Upon successful appeal by NC and the Official Solicitor this order has been set aside.

1. Headline Points

(a) the determination of capacity is decision specific;

(b) some decisions (eg agreeing to marry or consenting to divorce are status or act specific);

(c) other decisions (eg having contact with another particular individual) may be person specific;

(d) removing the specific factual context from some decisions leaves nothing for the evaluation of capacity to bite upon;

(e) not all decisions must be approached on an issue specific basis;

(f) nothing should be added to the plain words of the statute;

(g) the court is required to consider the capacity of the individual to make a decision in relation to ‘the matter’ (s.2( 1));

(h) ‘the matter’ may be grounded in a specific factual context, particularly where it involves a specific individual in respect of residence or contact;
(i) a decision to live with another must include information about the person with whom co-habitation is to take place;

(j) capacity to marry and capacity to live with a partner in marriage are different matters;

(k) to lack capacity under s.2(1) a person must be unable to make a
decision because of an impairment of, or a disturbance in the functioning
of, the mind or brain. It is not sufficient that the inability significantly
relates to the impairment.

2. Interpretation
The order was set aside on the narrow basis that the evidence in relation to PC’s capacity to consent to resume cohabitation did not satisfy the test under s.2(1). However, the wider implications of this judgment for practice in the Court of Protection are immense. In effect, a judgment in respect of all decisions (save for those exempted by virtue of s.27) can have imported into them a consideration of the factual context. For example, if capacity to consent to sexual relations is in issue, it will be now be appropriate for the Court to consider the person with whom sexual relations are to be entered into, on the basis of the characteristics of the partner (ie not just the act itself). There is no reason why the same might not have relevance to all other matters in respect of capacity that are before the Court. This is likely to cause a greater analysis of the facts, and findings of fact on the virtues or otherwise of prospective partner (the ‘beauty parade’), together with social workers having to make their own evaluations of the suitability of partners.

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