Abstract
The Court of Appeal decision in PC v City of York illustrates the complexity inconsistency and limits of the Mental Capacity Act 2005 (MCA 2005) when applied to decisions about intimate relationships. In commenting on the judgment - which held that a woman with significant learning disabilities had the capacity to decide to cohabit with her husband who posed a significant risk to her - we wish to make two main observations. The first concerns how the MCA 2005 assesses capacity Although the Court of Appeal wisely held that assessment of the capacity to decide to cohabit ought to be 'person-specific', it set an overly stringent evidential requirement for establishing incapacity This evidential stringency concerns both the connection between mental impairment (MCA 2005, section 2) and inability to understand and use relevant information (MCA 2005, section 3), and the way in which the Court interpreted the expert evidence as 'outcome evidence'. The second observation concerns the human right to protection from violence. Given the obligations under international law to provide protection for vulnerable persons, and given the jurisdiction of the Court of Protection to provide protection beyond the provisions in the MCA 2005, it is extraordinary the Court of Appeal limited itself to the analysis of the MCA 2005 and did not consider the use of the inherent jurisdiction. We shall first summarise the decision before making our observations.