A lot of capacity/COP judgments are disturbing in one way or another, but this one stood out from the crowd: London Borough of Islington v EF  EWHC 803 (Fam).
I’m genuinely not sure whether the judge was right about the inherent jurisdiction (its limits) or Article 8 (justification), but the approach of the local authority, expert and judge to capacity seems very odd. Here’s an extract from the case summary:
The judge accepted the local authority’s view that EF had the relevant capacity, despite the medical expert’s evidence including that “EF could not understand the nature of her relationship with GH, the risks to her from the relationship nor weigh up all the competing factors” and the judge himself finding that “EF does not appreciate the risks to her physical safety nor the risks to her mental health”.
Section 3 MCA states that “information relevant to a decision includes information about the reasonably foreseeable consequences of (a) deciding one way or another, or (b) failing to make the decision”.
How did he square that circle? Did he?
My initial thought is whether the answer is given at paragraphs 31 and 37 of the Judgement.
31. EF’s mental health is current stable. She is engaging well with her support staff and taking her medication.
37. Section 2 of the MCA states that a person lacks capacity if and only if it is established at the material time that they are unable to make the decision for themselves in relation to the matter because of any impairment of or disturbance in the functioning of the mind or brain. As already mentioned it is agreed that EF has the capacity to make the relevant decisions.
So whilst the medical evidence in relation to EF’s ability to make the decisions was felt to be lacking (as you highlighted) they did not believe that this apparent inability was 'because of an impairment of or a disturbance in the functioning of the mind or brain’.
I would refer to two paragraphs in the judgement PC & NC v City of York Council  EWCA Civ 478:
“58. … There is, however, a danger in structuring the decision by looking to s 2(1) primarily as requiring a finding of mental impairment an nothing more and in considering s 2(1) first before then going on to look at s 3(1) as requiring a finding of inability to make a decision. The danger is that the strength of the causative nexus between mental impairment and inability to decide is watered down. That sequence – ‘mental impairment’ and then ‘inability to make a decision’ – is the reverse of that in s 2(1) – ‘unable to make a decision … because of an impairment of, or a disturbance in the functioning of, the mind or brain’ [emphasis added]. The danger in using s 2(1) simply to collect the mental health element is that the key words ‘because of’ in s 2(1) may lose their prominence and be replaced by words such as those deployed by Hedley J: ‘referable to’ or ‘significantly relates to’.
59. Approaching the issue in the case in the sequence set out in s 2(1), the first question is whether PC is ‘unable to make a decision for herself in relation to the matter’, the matter being re- establishing cohabitation with NC now that he is her husband and now that he is has regained his liberty. In this regard the fact that PC has capacity in all other areas of her life (save for litigation) and, in particular, has capacity to marry, is very significant. Hedley J’s findings [paragraph 21] that PC is unable to understand the potential risk that NC presents and is unable to weigh up the relevant information [the factors in MCA 2005, s 3(1)(a) and (c)] are therefore distinct and apart from her capacity to undertake these tasks in relation to all other matters that fall for decision, including marriage itself. Against that background it was, in my view, necessary for the judge to spell out why he came to these conclusions, notwithstanding PC’s capacity generally to make her own decisions. This the judge did not do. This omission is perhaps understandable as, in reality, the evidential basis for such a distinction had not been established.”
These are only my initial reflections but i hope that they are helpful. I would also recommend the 39 Essex Chambers summary of the PC & NC v City of York Council decision.
Yes, you must be right. You have explained so well it seems obvious now. So she falls between two stools. Under the MCA, she is unable to understand some information which is relevant to the decision, so is unable to make the decision, but she does have MCA capacity because the inability isn’t because of an impairment or disturbance etc. At the same time, as far as the inherent jurisdiction is concerned, she is able to make the same decision despite undue influence.
I’ve added some text to the end of the relevant sentence:
(3) The judge accepted the local authority’s view that EF had the relevant capacity, despite the medical expert’s evidence including that “EF could not understand the nature of her relationship with GH, the risks to her from the relationship nor weigh up all the competing factors” and the judge himself finding that “EF does not appreciate the risks to her physical safety nor the risks to her mental health”, presumably because he decided that the inability to make the decision was not because of an impairment of, or a disturbance in the functioning of, the mind or brain.
I hope that’s better!
I’ve just read the commentary in 39 Essex Chambers, ‘Mental Capacity Report’ (issue 121, April 2022). Here it is:
Given the evidence, the position of the parties and the court that EF was able to make all of the relevant decisions is certainly not without interest. Reminiscent of PC and NC v City of York Council, one cannot help but wonder in this complex case whether perhaps EF was unable to comprehend the risks posed by GH but that the causative nexus had not been proven for MCA purposes. Neither was the nexus between GH’s undue influence and EF’s decision-making ability established for inherent jurisdiction purposes, for his influence did not deprive or disable her from making the decisions.
The crux of the case appears to be that despite the court’s assessment of risk at paragraph 91, a travel ban would not have been a necessary and proportionate interference with EF’s Article 8 ECHR rights in the context of this 3-year relationship. Moreover, the order would have been directed at EF, presumably by way of an injunction, which poses a challenge of logic. The basis for seeking an injunction was that EF was not acting of her own free will. So how could she be held accountable for breaching the injunction? She either is or is not able to exercise her own will
Dear Jonathan, sorry for my slow reply, but it looks good to me!