A smiling carer chats with an elderly lady

Call the Midwife in the 21st century: assessment of capacity today

Many people will have seen the recent episode of the popular Sunday night drama series, “Call the Midwife”, which featured a touching story about the relationship between Sally, a young woman with Down’s Syndrome, and Jacob, a young man with cerebral palsy. Sally had become pregnant, and the couple wished to marry, but both the pregnancy and their desire to marry were dismissed by their families and carers without any assessment made of their ability to make that decision.

Call the Midwife is set in the 1950s and no doubt is representative of views at the time. Sally and Jacob’s carers decided what was in their best interests with no attempt to consider whether the couple might, in fact, have capacity to make decisions as to their future.

The Mental Capacity Act and decision-making

The 21st century equivalent of Sally and Jacob live in more enlightened times, with the Mental Capacity Act 2005 (MCA) acting as a statutory bedrock to the way in which the question of capacity should be approached. The first section of the MCA states that a person should be presumed to have capacity unless it is established that he lacks capacity, putting the onus of proof clearly on the person alleging incapacity. The Act also makes it clear that a person is not to be treated as unable to make a decision merely because he makes an unwise decision. As stated by Mr Justice Hedley in CYC v PC & NC [2012] MHLO 103 (COP), “it may be necessary from time to time to leave open to the (patient) the option of making an unwise decision”.

The MCA goes on to state that a person is only to be taken as being unable to make a decision when all practical steps to help him to do so have been taken without success. The Code of Practice which accompanies the MCA sets out ways in which a person can be helped to make a decision, including providing relevant information and explanations, communicating in the most appropriate way and choosing the best location and time of day.

The test for capacity

The test of capacity is set out in the Mental Capacity Act 2005 and is time and decision specific. This results in one individual being capable of making some, but not other decisions and whether they have capacity to make a particular decision will vary depending on the decision to be made. To take an extreme example, a person may well have capacity to decide which of several activities to undertake on a particular day but not have capacity to decide where they should live.

There are a number of Court of Protection cases where a patient is deemed to have capacity for one act, such as with whom to have contact, but not for another such as where they should live and receive care. In one case from the 1940s a man was deemed to have capacity to marry at 11.30 am in the morning, although he was found not to have capacity to make a Will earlier in the day.

Sally and Jacob today

So how would Sally and Jacob’s wish to marry be approached today? Firstly, they would be deemed to have capacity to make that decision unless it was shown otherwise (s1 MCA). If the capacity of either one of them, or both, was challenged then there is clear guidance set down in recently decided cases as to how the question should be approached.

The present leading case on capacity to marry (Sheffield City Council v E and Another [2004] EWHC 2808 (Fam)) was decided in 2004 when it was held that to have capacity to marry a person has to understand the marriage contract and that requires understanding of the duties and responsibilities that attach to marriage. It is not enough that someone appreciates that they are taking part in a marriage ceremony and understands its words; they must also understand the nature of the contract that they are entering into.

As the marriage contract is, at essence, quite a simple one, the hurdle of showing that a person has capacity to understand it can be cleared relatively easily when compared to other more difficult decisions such as managing financial affairs on an on-going basis. As stated by Mr Justice Munby (as he was then) in that case: “There are many people in society who may be of limited…capacity but whose lives are immensely enriched by marriage. We must be careful not to set the test of capacity too high”.

If a patient understands the nature of the marriage contract, according to Mr Justice Munby, whether that decision “leads to happiness or regret is simply none of my business”. The court is not concerned as to whether it is in a person’s best interests to marry just whether they understand the nature of the marriage contract.

Similarly, the question is not person specific (eg does Sally have capacity to marry Jacob?) but centres simply on the issue (does Sally understand the marriage contract and thus have capacity to marry?). If she has such capacity then it is a matter for Sally to decide whether she marries Jacob or someone else and no-one else can interfere with that decision, even if perhaps others consider it to be inadvisable or unwise (see s1(4) MCA 2005).

A happier ending?

The episode ended with Jacob being sent away to live in another residential home, away from Sally, after their baby is still-born. Given the more sophisticated approach to such matters that is in place today, it is possible that the couple’s story would have a happier ending with a positive assessment of their ability to choose to spend their lives together and on-going support to enable their wish to be achieved.

To read about capacity to consent to sexual relations visit this post.

We are also holding seminars in early March in Bristol and Southampton on Adults, Incapacity and their Personal Lives; visit our firm website for more details.