Abstract
It is indeed a pleasure and a privilege to be addressing such an august audience. You do me great honour. I trust what I say may be of interest, though recognising that as a mere lawyer I venture into territory to which the medical profession can lay at least as large a claim. I can only ask that you bear with my limitations. 1
Our purpose today is to discuss capacity, but I will limit myself to capacity in relation to adults, that is, people who have attained the age of 18 years. In relation to children the principles are different. 2
The starting point is that every adult is presumed to have capacity until the contrary is established. But what do we mean for this purpose by capacity? 3
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 relevant transaction. The classic statement of principle goes back to the advice of the judges to the House of Lords in M'Naghten's case in 1843.
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That, of course, was a criminal case where the judges were concerned to define the ambit of the defence of insanity. 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 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, to consent to medical treatment, to decide where and with whom to live or to consent to sexual relations; the list of course is not exhaustive. As Hoffmann J (as he then was) said in 1988:
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“It is well established that capacity to perform a juristic act exists when the person who purported to do the act had at the time the mental capacity, with the assistance of such explanation as he may have been given, to understand the nature and effect of that particular transaction.”
That puts the point at a very general level of abstraction. Modern analysis of what this involves can for present purposes be taken as having started with the judgment of Thorpe J (as he then was) in Re C in 1994.
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The case involved a chronic paranoid schizophrenic with a gangrenous foot who was refusing to consent to the amputation without which medical advice was that his chance of survival was small. A consultant forensic psychiatrist, De Eastman, gave evidence to the effect, as summarised by the judge, that for the patient offered amputation to save life, there are three stages to the decision: (1) to take in and retain treatment information, (2) to believe it and (3) to weigh that information, balancing risks and needs. His opinion was that C had achieved the first stage but not the second. Thorpe J said that: “the question to be decided is whether it has been established that C's capacity is so reduced by his chronic mental illness that he does not sufficiently understand the nature, purpose and effects of the proffered amputation. I consider helpful Dr Eastman's analysis of the decision-making process into three stages: first, comprehending and retaining treatment information, secondly, believing it and, thirdly, weighing it in the balance to arrive at choice.”
His conclusion on the facts, in the light of all the evidence, was that C did have capacity: “Although his general capacity is impaired by schizophrenia, it has not been established that he does not sufficiently understand the nature, purpose and effects of the treatment he refuses. Indeed, I am satisfied that he has understood and retained the relevant treatment information, that in his own way he believes it, and that in the same fashion he has arrived at a clear choice.”
The same approach was adopted by the Court of Appeal in another medical treatment case, Re MB, in 1997:
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“A person lacks capacity if some impairment or disturbance of mental functioning renders the person unable to make a decision whether to consent to or to refuse treatment. That inability to make a decision will occur when:
the patient is unable to comprehend and retain the information which is material to the decision, especially as to the likely consequences of having or not having the treatment in question; the patient is unable to use the information and weigh it in the balance as part of the process of arriving at the decision. If … a compulsive disorder or phobia from which the patient suffers stifles belief in the information presented to her, then the decision may not be a true one.”
What is essentially the same test as that set out in Re MB, albeit expressed in slightly different words, was adopted by the Court of Appeal in 2002
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in a case where the question was whether someone had litigation capacity – the capacity to litigate without the assistance of a litigation friend: “the mental abilities required include the ability to recognise a problem, obtain and receive, understand and retain relevant information, including advice; the ability to weigh the information (including that derived from advice) in the balance in reaching a decision, and the ability to communicate that decision.”
Now on one level of abstraction each of these formulations is simply a statement of a general theory – a theory, it is to be noted, formulated not just by lawyers but by lawyers and psychiatrists – of what is meant by “understanding” a problem and having the capacity to decide what to do about it. “Understanding” a problem, so as to have the capacity to decide what to do about it, requires, on this approach, the mental ability: (i) to recognise the problem; (ii) to obtain, receive, take in, comprehend and retain information relevant to the problem and its solution; (iii) to believe that information; and (iv) to weigh (evaluate) that information in the balance so as to arrive at a solution (decision).
In these rather abstract terms, this general theory applies, in principle, to all “problems” and to all “decisions”. So, for example, this general theory is in principle as applicable in a situation where the question is whether X has the capacity to marry or to make a will as it would be if the question was whether X has the capacity to litigate, the capacity to consent (or refuse consent) to medical treatment or the capacity to decide where and with whom to live.
What is in essence the same theory or principle is now to be found in the statutory test of capacity set out in s 3(1) of the Mental Capacity Act 2005: “… a person is unable to make a decision for himself if he is unable –
to understand the information relevant to the decision, to retain that information, to use or weigh that information as part of the process of making the decision, or to communicate his decision (whether by talking, using sign language or any other means).”
There is one other point to be made. It will have been noticed that in Re C Thorpe J identified, as the second of three ingredients of the test, the ability or capacity to “believe” the relevant information, whereas that ingredient is seemingly missing both from the formulation of the test in Re MB and from s 3(1) of the 2005 Act. The answer to this seeming lack of correspondence between the tests in Re C and Re MB is to be found towards the end of the passage which I quoted above from the judgment in Re MB. 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.
Section 3(1) has to be read in the context of the other provisions in s 2 and 3 of the 2005 Act. Section 2(1) sets out that: “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.”
Section 2(3) makes clear that: “A lack of capacity cannot be established merely by reference to –
a person's age or appearance, or a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity.” “(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 –
deciding one way or another, or failing to make the decision.” “A person is not to be treated as unable to make a decision merely because he makes an unwise decision.”
This reflects the previous case law. As Dame Elizabeth Butler-Sloss P said in Re B:
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“it is most important that those considering the issue should not confuse the question of mental capacity with the nature of the decision made by the patient, however grave the consequences. The view of the patient may reflect a difference in values rather than an absence of competence and the assessment of capacity should be approached with this firmly in mind.”
What emerges from these formulations is that capacity is not a matter of status; the test is functional.
This has a very important corollary. The mental capacity required by the law is capacity in relation to the particular transaction which is to be effected. In other words, capacity is issue specific. Someone can have capacity for one purpose while simultaneously lacking capacity for another purpose. That is why in the kind of cases that come before the Court of Protection it has now become the practice to grant separate declarations as to a vulnerable adult's capacity, for example (the list is not exhaustive): (i) to litigate; (ii) to decide where and with whom to live; (iii) to decide whom she has contact with; (iv) to decide on issues concerning medical treatment; (v) to decide on issues concerning her care; (vi) to consent to sexual relations; (vii) to consent to marry; and (viii) to manage her financial affairs (including, for example, to make a gift or a will).
A very striking example of the principle that capacity is issue specific is the case of Mr Park. He married at 11:30 on 30 May 1949 and made his will some three hours later at 14:45 the same afternoon. He died soon afterwards on 17 June 1949. Questions were subsequently raised first as to the validity of the will and then as to the validity of the marriage. Both were challenged on the basis that the deceased had lacked capacity. The first dispute was tried before Pearce J and a jury in 1950; the finding was that Mr Park did not have capacity to make the will. 11 The dispute as to the validity of the marriage was tried before Karminski J in 1953. 12 He found that Mr Park did have capacity to marry. His decision was upheld by the Court of Appeal, 13 where the interesting comment was made 14 that the jury's answer to the question put to them by Pearce J “cannot be treated as if it were a certificate of insanity”.
In the same way, and because capacity is always issue specific, an adult who lacks the capacity to litigate – lacks “litigation capacity” – may nonetheless have capacity with regard to the matters which are the subject of that litigation – what one might call “subject-matter capacity”. One example is in the context of adoption, where not infrequently it is found that a parent who lacks the capacity to litigate nonetheless has capacity to consent to the making of an adoption order in accordance with s 47(2) of the Adoption and Children Act 2002. Another example is to be found in cases where a claimant who lacks the capacity to litigate, and accordingly acts by a litigation friend, nonetheless has the capacity to decide to refuse the medical treatment which is under consideration in the proceedings. 15
The case law on litigation capacity brings out another important point. Capacity is not merely issue specific in relation to different types of transaction; capacity is also issue specific in relation to different transactions of the same type. The question of capacity is not something to be determined in the abstract. Thus in the case of capacity to litigate one has to focus on the particular piece of litigation in relation to which the issue arises. The question is always whether the litigant has capacity to litigate in relation to the particular proceedings in which he is involved. Someone may have the capacity to litigate in a case where the nature of the dispute and the issues are simple, while at the same time lacking the capacity to litigate in a case where either the nature of the dispute or the issues are more complex.
The same point arises in the context of medical treatment. Some medical treatment, like some litigation, is relatively simple and risk free. Some medical treatment, on the other hand, like some litigation, is highly complex and more or less risky. Thus a vulnerable adult with what one may call borderline capacity may understand the nature of, and thus have the capacity to consent to, a simple and more or less risk-free medical or surgical procedure while lacking the capacity to consent to a more complicated – perhaps controversial – form of treatment. 16 Just as litigation varies very considerably, so too do medical and surgical procedures.
So also, in principle, a vulnerable adult may have the capacity to consent to one kind of sexual activity while lacking the capacity to consent to some other (and to them unfamiliar) kind of sexual activity.
The general principle is helpfully and accurately encapsulated in para 4.4 of the Mental Capacity Act 2005 Code of Practice (TSO, 2007): “An assessment of a person's capacity must be based on their ability to make a specific decision at the time it needs to be made, and not their ability to make decisions in general.”
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Case law since 2007, when the 2005 Act came into force, has elucidated certain aspects of the statutory test of capacity.
The first point is obvious, but merits emphasis. Although capacity is always issue specific, the evidential inquiry must focus on the full picture. The cumulative effect of a number of matters, none of which alone would justify a finding of incapacity, may suffice to establish it. 18
The next point is this: what is required is that the person under review be able to comprehend and weigh the salient details relevant to the decision to be made; it is not necessary that they should be able to understand all the peripheral details or give weight to every consideration that would otherwise be utilised in formulating a decision objectively in their best interests.
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That was said in a personal welfare case. The same point was made in the context of litigation capacity, in a case where the issue was whether P had the capacity to decide whether to discontinue, or to continue to prosecute, an action begun on his behalf by his deputy seeking the setting aside of gifts he had made on the basis that they had been procured by undue influence. Henderson J put it this way:
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“that decision cannot be taken … without at least a basic understanding of the nature of the claim, of the legal issues involved, and of the circumstances which have given rise to the claim. It would be an over-simplification to say that the claim is just a claim to set aside or reverse the gifts which Mr S made to Mrs D … If a gift is to be set aside or recovered, some vitiating factor such as fraud, misrepresentation or undue influence has to be established; and if the donor is to decide whether or not to pursue a claim, he needs to understand, at least in general terms, the nature of the vitiating factor upon which he may be able to rely, and to weigh up the arguments for and against pursuing the claim.”
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Third, s 3(4) does not require the ability to evaluate all the possible consequences. The question arose in a case where the issue was whether a woman had the capacity to decide whether or not to use contraceptives. It arose because, as Bodey J pointed out, although contraception is properly described as a form of medical treatment, it is more than that; it produces such significant social consequences as the potential creation of a child.
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The argument on one side was that s 3(4) required only that the woman understands the “proximate medical issues”, on the other side that what was required was that she is also capable of envisaging the wider practicalities of bringing up a child. Bodey J preferred the narrower view,
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commenting that: “To apply the wider test would be to ‘set the bar too high’ and would risk a move away from personal autonomy in the direction of social engineering.”
The Court of Protection continues to have, as it always has, jurisdiction over an incapacitated person's property and financial affairs. But under s 16 of the 2005 Act, the Court of Protection is now also empowered to make decisions about an incapacitated person's “personal welfare”. Section 17(1) of the 2005 Act provides that: “The powers under section 16 as respects P's personal welfare extend in particular to –
deciding where P is to live; deciding what contact, if any, P is to have with any specified persons; making an order prohibiting a named person from having contact with P; giving or refusing consent to the carrying out or continuation of a treatment by a person providing health care for P; giving a direction that a person responsible for P's health care allow a different person to take over that responsibility.”
The jurisdiction of the Court of Protection is expressly excluded in relation to two matters, for s 27(1) of the 2005 Act provides that: “Nothing in this Act permits a decision on any of the following matters to be made on behalf of a person –
consenting to marriage or a civil partnership, consenting to have sexual relations.”
Now because historically they have been closely connected with other branches of the law (in the one case the matrimonial law and in the other the criminal law) the tests of a vulnerable adult's capacity to consent to marry and to consent to sexual relations have been expressed in terms somewhat different from those set out in Re MB. This does not mean, however, that the approach is fundamentally different. After all, what I have called the general theory is in principle as applicable in a situation where the question is whether X has the capacity to marry or to enter into sexual relations as it would be if the question was whether, for example, X has the capacity to litigate or to consent (or refuse consent) to medical treatment.
Let us look first at marriage.
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The key statement of principle was laid down definitively in 1954 in Re Park:
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“Was the deceased … capable of understanding the nature of the contract into which he was entering, or was his mental condition such that he was incapable of understanding it? To ascertain the nature of the contract of marriage a man must be mentally capable of appreciating that it involves the responsibilities normally attaching to marriage. Without that degree of mentality, it cannot be said that he understands the nature of the contract.”
There was nothing particularly new about that; it reflects much earlier case law.
By way of elaboration, there are three points to be noted.
The first is, as has long been recognised, that the contract of marriage is in essence a simple one. It does not require a high degree of intelligence to understand. It can be contrasted with medical treatment and litigation, which of their very nature are often complex, technical and capable of being properly understood by a layman only with the benefit of appropriate expert advice.
The second point is that 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? Two things about this formulation are noticeable. The test is capacity to understand the nature of the contract of marriage. The test is not capacity to understand the implications of a particular marriage. Putting the same point somewhat differently, the nature of the contract of marriage is necessarily something shared in common by all marriages. It is not something that differs as between different marriages or depending upon whether A marries B or C. The implications for A of choosing to marry B rather than C may be immense. B may be a loving pauper and C a wife-beating millionaire. But this has nothing to do with the nature of the contract of marriage into which A has chosen to enter. Whether A marries B or marries C, the contract is the same, its nature is the same, and its legal consequences are the same. The emotional, social, financial and other implications for A may be very different but the nature of the contract is precisely the same in both cases. One can sensibly say that marriage is marriage; one cannot in the same way simply say that medical treatment is medical treatment. Medical procedures vary. The contract of marriage is necessarily, and indeed as a matter of law, the same for everyone.
The third point flows on from the second. The question is whether A has capacity to marry. That is not some hypothetical or abstract question. It is a very specific question to be addressed by reference to the state of affairs existing at the time in relation to which the inquiry is made. On the other hand, it is, if you like, a general question, in the sense that the question is whether A has capacity to marry, not whether she has capacity to marry B rather than C or some other man. The question of capacity to marry has never been considered by reference to a person's ability to understand or evaluate the characteristics of some particular spouse or intended spouse. In short, marriage is status specific, not spouse specific. 28
Before passing on there are two further points to be made, both illustrating the more general principles to which I have already referred.
Capacity to marry is not the same as capacity to look after oneself or one's property. Often, of course, someone who lacks the capacity to do the one will also lack the capacity to do the other; but not necessarily. After all, the test, as always, is issue-specific; and, when applied to different issues, it may yield different answers. The question is, does A have capacity to marry? If she does, it is not necessary to show that she also has capacity to take care of her own person and property.
It is convenient at this point to stress again that capacity and wisdom are two different things. The question of whether A has capacity to marry is quite distinct from the question of whether A is wise to marry: either wise to marry at all, or wise to marry B rather than C. In this context, I refer back to what Dame Elizabeth Butler-Sloss P said in the passage in Re B which I have already quoted and cite something very recently said by that wisest and most humane of judges, Hedley J:
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“It is of course important to remember that possession of capacity is quite distinct from the exercise of it by the giving or withholding of consent. Experience in the family courts tend to suggest that in the exercise of capacity humanity is all too often capable of misguided decision making and even downright folly. That of itself tells one nothing of capacity itself which requires a quite separate consideration.”
I move on to capacity to consent to sexual relations; here the law is much less clear. 30
My own view, expressed in a pair of cases in 2006 and 2007, 31 was – whether it still is I do not know – that 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. So, for example, capacity to consent to sexual intercourse depends upon a person having sufficient knowledge and understanding of the nature and character – the sexual nature and character – of the act of sexual intercourse, and of the reasonably foreseeable consequences of sexual intercourse to have the capacity to choose whether or not to engage in it, the capacity to decide whether to give or withhold consent to sexual intercourse.
But capacity to consent to sexual relations is, on this view, a question directed to the nature of the activity rather than to the identity of the sexual partner. Put shortly, capacity to consent to sexual relations is issue specific; it is not person (partner) specific.
My thinking went along the following lines: a woman either has capacity, for example, to consent to “normal” penetrative vaginal intercourse, or she does not. It is difficult to see how it can sensibly be said that she has capacity to consent to a particular sexual act with X while at the same time lacking capacity to consent to precisely the same sexual act with Y. Capacity to consent to sexual intercourse depends upon having sufficient knowledge and understanding of the sexual nature and character of the act of sexual intercourse; it does not depend upon an understanding of the social, emotional or personal consequences of sexual intercourse with a particular person.
In 2009, in the course of a deciding a similar question in the context of the criminal law, the House of Lords expressed views which, understandably, have been taken as casting doubt on what I had said.
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But the House did not say in terms that I was wrong. This has posed difficulties for the judges in the Family Division and the Court of Protection. One judge, Roderic Wood J, sought to build a bridge between the two viewpoints.
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Another, Mostyn J, would have none of such compromise. Boldly, though “with the greatest possible respect”, suggesting that in the House of Lords “there has been a conflation of capacity to consent to sex and the exercise of that capacity”, he took the same view as I had earlier done.
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His reasoning is captured in the following passages:
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“while a sexual relationship is not a vital ingredient of marriage it is, generally speaking, implicit in the marriage agreement. Thus, it can be seen that the test of capacity to marry must be very closely related to the test of capacity to consent to sexual relations. And it would be a very strange thing if the latter were set higher than the former, for it would be an absurd state of affairs if a person had just sufficient intelligence to consent to marriage but insufficient capacity to consent to its (generally speaking) intrinsic component of consummation.”
It was accordingly unsurprising, he said, given the status or act specific nature of the requisite capacity for marriage, that the capacity to consent to sexual relations should likewise be act rather than partner specific. 36
Most recently the issue has been considered by Hedley J
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who, recognising the unsatisfactory state of the authorities, and eschewing the attempt as he put it “simply to subject those five judgments to critical analysis and then solemnly pronounce as between them”, embarked upon his own analysis, from first principles, guided by the statute. His whole judgment repays careful reading, but today I must be selective. The central core of his reasoning is as follows:
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“Clearly a person must have a basic understanding of the mechanics of the physical act and clearly must have an understanding that vaginal intercourse may lead to pregnancy. Moreover it seems to me that capacity requires some grasp of issues of sexual health. However, given that that is linked to the knowledge of developments in medicine, it seems to me that the knowledge required is fairly rudimentary. In my view it should suffice if a person understands that sexual relations may lead to significant ill-health and that those risks can be reduced by precautions like a condom. I do not think more can be required.”
He went on to consider what he said was the “greater problem”, namely “whether capacity needs in some way to reflect or encompass the moral and emotional aspect of human sexual relationships”. 39
As to the first, he said that although the moral aspect “is an important component in sexual relations it can have no specific role in a test of capacity”. In relation to the emotional aspect he concluded: “In my judgment one can do no more than this: does the person whose capacity is in question understand that they do have a choice and that they can refuse? That seems to me an important aspect of capacity and is as far as it is really possible to go over and above an understanding of the physical component.”
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That is the most recent word on the subject. There I must leave it. Being parti pris I cannot adjudicate. And in any event you are going to hear more on this from the next speaker, who has, moreover, the great advantage over me that she is not a lawyer.
I add one point in closing. Lying behind these questions there are vitally important social, ethical and indeed moral principles at stake. The law here – both the civil law and the criminal law – exists to protect the vulnerable from abuse and exploitation. But there is a very difficult and delicate balance to be struck between paternalism and freedom, between undue state interference in an individual's sexual life and the state's responsibility to protect an individual from exploitation and abuse. Although there is a clear need to protect the mentally disordered from sexual abuse, it is important that the law is not drawn so restrictively that it denies the mentally disordered their right to engage in sexual relationships. 41
As the late Professor Sir Glanville Williams put it:
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“it is necessary … not to forbid sexual expression to women of low intelligence. Every offence has the effect of diminishing the liberty of the defendant, but when a person is convicted on account of a consensual activity the practical result is to restrict not only his liberty but that of the person with whom he acts.”
Speaking of capacity to marry I said this in one case:
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“There is in fact … an important public interest – an important element of public policy – lurking behind [these] questions … Marriage creates a status from which certain legal rights and duties automatically stem. Marriage also carries with it not merely all those intensely human, personal and emotional advantages that are obviously so important for so many but also a wide range of legal, social and fiscal advantages … There are many people in our society who may be of limited or borderline capacity but whose lives are immensely enriched by marriage. We must be careful not to set the test of capacity to marry too high, lest it operate as an unfair, unnecessary and indeed discriminatory bar against the mentally disabled.”
Thank you again for asking me to speak.