An Example Of Capacity Being Question Specific

The Court of Protection revolves around making specific decisions for protected parties who lack the capacity to make those decisions. The Court is not always required to intervene and may instead, after assessment, find that the protected party has the capacity to decide for himself/herself.

The level of capacity required by the protected party will vary in each case depending on the decision to be made. For example, the level of capacity required by the protected party to manage his/her own property and financial affairs will normally be greater than the level of capacity needed to decide whether the protected party should go on holiday. Sometimes, the nature of the protected party’s estate can be quite important. For example, the level of capacity required by the protected party to manage his/her property and financial affairs when his/her assets exceed £1,000,000 will be greater than the measure of understanding the protected party would need to deal with assets worth less than £50,000, as it is expected the management of greater assets will be far more complex.

The Court of Protection is guided by the Mental Capacity Act 2005 when assessing capacity. The Act provides that the protected party has capacity unless it is proven otherwise. When considering whether the protected party has the capacity, the Court is looking to see that the protected party can:

• Understand the information relevant to the decision in question;
• Retain that information; and
• Use or weigh that information as part of the decision making process.

Re P A local authority v P (by his litigation friend, SB) and another

Case summary

In the recent case of Re P A local authority v P (by his litigation friend, SB) and another the Court of Protection was required to decide whether a protected party could make decisions on his place of residence and the care he was due to receive and whether he had the capacity to enter into sexual relationships with others. It was noted that the protected party was at an inherent risk when entering into such relationships due to his own history and vulnerability. It was decided that the protected party was not able to understand these risks and therefore unable to weigh up those risks when making decisions on whether to have sexual relations.

The Judge concluded that the protected party lacked the capacity to enter into sexual relationships due to the inherent risks which he could not understand. The Judge also considered whether he could decide on his own residence and care and considered other factors in respect of this decision. It was noted although the protected party could look after himself to some extent, he still required a lot of support and there were doubts as to his ability to care for himself properly should he be left to his own devices. The Court again concluded the protected party lacked the capacity to make informed decisions in respect of his place of residence and care.

The Judge did, however, note the spectrum of capacity was ever-changing and with continued support and training, envisaged that the protected party may one day be found to have the capacity to make decisions in relation to these issues. This again reinforces the fact that capacity is issue-specific, and the “answer” is very much dependant on the nature and context of any question the protected party is faced with.