AMDC v AG and CI (No. 2)
Judge: Poole J
Citation:  EWCOP 5
These proceedings involve the development of a relationship between two care home residents. In light of the interim judgment, which we covered at  EWCOP 58, the matter was adjourned for further capacity evidence. There being no dispute over the new expert’s conclusions, the judge held that AG lacked capacity to make decisions about the conduct of litigation, residence, care, and property and affairs including termination of the tenancy for the following reasons:
14 … AG does not have insight into her own limitations, or her need for care and assistance. Her very simplistic belief is that since she was previously able to care for herself, find accommodation, and manage her affairs, she can do so in the future. She does not understand that she has dementia or that her cognitive functioning is impaired. Therefore, she expresses herself with confidence, even though her beliefs are patently ill-founded. She has no ability to process information relevant to more complex decision making such as would be involved in deciding where to live, the conduct of litigation, ways of providing the care she needs, or the advantages and disadvantages of different ways of managing her property or affairs. Her ability to retain anything more than basic information is severely impaired, and she is unable to weigh and use information relevant to these decisions.
Contrary to the previous expert, Dr Mynors-Wallis’ view was that AG had capacity to make decisions to engage in sexual relations and to have contact with others. Perhaps illustrating the need to calibrate the sexual capacity test when assessing someone aged 69, Dr Mynors-Wallis said, “I asked whether she thought she was at risk of becoming pregnant. She laughed and said “I’m too old. There’s just as much a chance of him becoming pregnant as me” and laughed again.” In relation to contact with others, the expert explored AG’s understanding by reference to contact with people about whom she would have to make decisions, including her family, and her partner CI. She demonstrated understanding of the advantages and disadvantages of contact, and of what to do if she wanted to be alone. The judge agreed with the expert’s conclusions and accordingly the care plan would need to be changed to reflect her decision-making ability in these two regards:
24 … The previous position that AG did not have capacity to engage in sexual relations had significant consequences for AG, for CI, and for the management of the care home. Restrictions were put in place to prevent AG entering CI’s room for example. Any form of physical intimacy between them could potentially have been viewed as an assault upon AG given the view and interim findings that there was reason to believe that AG lacked capacity to consent to sexual relations. Those restrictions will now be reconsidered and the safeguarding adults protection plan will be withdrawn. The care home will follow the CQC’s guidance on “Relationships and Sexuality in Adult Social Care Services.”…
One tricky area concerned AG’s capacity to marry. The expert was satisfied that AG demonstrated a basic understanding of the marriage contract but not the more complex information relevant to decisions about marriage and divorce, such as the financial implications. Having considered the previous case law, Poole J held:
- In the light of this guidance, it is important not to apply too stringent a test for capacity to make decisions about marriage or divorce. Nevertheless, s 3(4) of the MCA 2005 provides that information relevant to a decision includes the reasonably foreseeable consequences of deciding one way or another, or not making a decision. A person with capacity to enter into a marriage may choose to disregard those consequences, but they must be able to understand and weigh such relevant information. A person may lack capacity in relation to decisions about residence, care or their financial affairs, but have capacity to make decisions about marriage. However, in this case, when determining capacity to marry, some consideration is required of AG’s capacity in relation to decisions about care, residence, and financial affairs. AG herself sees marriage as a way of changing her care and residence. Furthermore, although previous authorities may have focused on the necessity for P to understand information relevant to marriage, it is important also to consider P’s ability to retain, use and weigh such information.
- Dr Mynors-Wallis reports that AG said she wished to marry CI because they loved each other. She said that one difference between being married and not being married would be that on becoming married she would be able to go out to work to support CI. She said that once married they would share their money and would find a bungalow in which to live but she did not know anything about her own finances, or CI’s finances, did not know in what town she currently lives, could not recall the fact that she is currently married, and had no idea what would happen to money and property after any divorce, and so did not appear to understand that divorce may bring about a financial claim. She told Dr Mynors-Wallis, as recorded at paragraph 12.5 of his report, that she would have no difficulty living independently with CI because she had always been able to look after herself. She believes that becoming married would enable her to work, to look after CI, and to be fully independent. In fact, she is clearly unfit to work, and she was admitted to the care home because she was utterly unable to look after herself in the community even with considerable assistance. AG has no insight into her cognitive limitations or her physical health needs, and no real understanding of the financial and other implications of her entering into marriage so that she and her spouse could live together as she envisages. AG’s view of her status as a married person is not at all grounded in reality.
- I remind myself that the test is status specific not person specific, and that the wisdom of any particular marriage decision is irrelevant. However, applying the capacity tests from the MCA 2005, I agree with Dr Mynors-Wallis and the parties that AG lacks capacity to make decisions about marriage, and about divorce. Due to her inability to understand, retain and weigh information, she has fantastical beliefs that the act of getting married will result in her living independently in the community, free her of the need for care, and enable her to work. This is what married life was like for her in the past, and her impairments due to her frontal lobe dementia result in an inability to understand that marriage in the future will not return her to that same level of functioning and independence. AG is unable to retain information about her present married status – she does not consistently recall whether she is married, divorced or widowed. She cannot weigh or use relevant information to allow her to consider the advantages and disadvantages of marriage so as to make a decision about marriage. Dr Mynors-Wallis reminded himself, as I do, that the test for capacity for marriage should not be over-complicated, but he considers that AG’s dementia “means that she doesn’t have capacity to fully weigh up the pros and cons of a marriage” and she is “unable to retain key necessary information to make a decision about marriage”. I agree that AG does not have capacity to enter into marriage. I am also satisfied that she has no understanding of what divorce would entail financially or in relation to her status, not even in broad terms. In my judgment it is necessary to make a finding on AG’s capacity to enter marriage because the finding that she has capacity to engage in sexual relations may well bring the contemplation of marriage, already remarked on by both respondents, into sharper focus.
The local authority was directed to consider what options were available to AG in terms of accommodation and care and support packages, including the possibility that she and CI could reside together under some arrangement whereby sufficient care can be provided. A best interests meeting is to be convened in February 2021 after which the matter will return to court when, if reported, we might find out how the story of this couple ends.
This case illustrates the importance of getting the sexual and contact capacity assessments right, particularly when someone is already confined to an institutional setting where sometimes intimacy is one of the few things left. As these facts demonstrates, there is a fine line between consensual intimacy and a safeguarding alert and capacity defines where that line is drawn:
- It is regrettable that delay in resolving her case has prevented AG and CI from sharing intimacy when, as the court has now found, AG does have capacity to engage in sexual relations. However, the need for a new expert to look at this case afresh, has been proven.
Capacity enthusiasts will also note the reference to AG’s lack of “insight” into her limitations and needs. But this case illustrates those scenarios where a lack of insight overlaps with a lack of capacity, with full reasoning given as to why insight was found wanting and how it was affecting her capacity, as recommended for practitioners by the NICE guidelines at para 1.4.24.