Capacity Concerns: The Test For Capacity And What It Means For Vulnerable People

This blog covers the issue of capacity when making decisions and the recent case of Re W: Capacity to Engage in Sexual Relations & Marry [2025] EWCOP 32 (T2).

The law recognises the importance of an individual's autonomy in making their own decisions whilst also trying to ensure that when making decisions they are protected if they have a vulnerability which might be taken advantage of. Whether the law recognises if someone can make a particular decision is often described as 'having capacity' and the test for capacity differs depending on what the decision relates to (e.g. it is different for making a Will compared to entering into marriage as mentioned further below). It is important to understand what capacity is and the principles that guide it.

The Test for Capacity

When thinking about capacity the first place to look is the Mental Capacity Act 2005 (MCA 2005).Section 2 of the MCA 2005 states that:

Further explanation can be found later in section 3 of the statute which states that: 'a person is unable to make a decision for himself if he is unable—

1. to understand the information relevant to the decision,
2. to retain that information,
3. to use or weigh that information as part of the process of making the decision, or
4. to communicate his decision (whether by talking, using sign language or any other means).'

In addition to statute, in certain cases reference would need to be had to case law to ensure the correct test for capacity is used, For example, the precedent case on capacity when making a Will is Banks v Goodfellow (Banks v Goodfellow (1870) LR 5 QB 549) and that regarding the capacity when getting married is London Borough of Southwark v KA & Ors (London Borough of Southwark v KA & Ors [2016] EWCOP 20).

It is important to note that capacity is judged at the time of making the decision. A person with Demetia in a lucid period may be perfectly able during that time to make a decision when at other times they are not.

Equally, just because someone can make a decision in one situation does not always mean they can in another. In Re W: Capacity to Engage in Sexual Relations & Marry [2025] EWCOP 32 (T2), W's capacity to make decisions on intercourse, marriage and contact with other people were all treated as separate from each other. Furthermore, it was agreed that whilst W did not have the capacity to make decisions on her contact with other people, she did have the capacity to get married and have sex. Taking an individualistic approach to capacity decisions ensures that your loved ones are being listened to consistently and protects their autonomy in the decision-making process.

What to do if you are worried a loved one lacks capacity or is vulnerable

There is a presumption that a person making a decision has capacity but there are multiple reasons as to why, in some situations, they may not. It could be due to a temporary illness where the person will recover their capacity, or a permanent disability.

As mentioned above, whether someone has capacity under the law can fluctuate and will also differ depending on the decision they are making. Capacity assessments are often the first step in ascertaining whether or not someone is able to make a decision. During these assessments the assessor (whom would usually be medically trained) should try and take all reasonable steps to help the person make a decision without the need to involve others. Someone may be too tired in the evening or prefer that the information is written down rather than spoken. For everyday decisions such as eating and bathing, a family member may be able to make an assessment. However, for decisions like creating a Will or getting married, it may be prudent to involve professionals.

If a person is found to lack capacity or there is a disagreement between professionals about the capacity of a person, or someone wishes to challenge a capacity assessment the Court of Protection (COP) may become involved. COP has a wide range of powers but are not limited to:

• Making decisions for incapacitated people
• Resolving disputes over Lasting Power of Attorneys
• Appointing deputies (people who would act on behalf of the incapacitated person)

Knowing when to go to court can be daunting and seeking professional advice can help alleviate the pressure.

Re W: Capacity and Vulnerability

In some situations where you are concerned that a loved one is making a decision that may cause them to be taken advantage of, it is possible that the Court may find that they do have capacity. The welfare of the person in not necessarily the overriding factor when considering a vulnerable person's capacity to make a decision (London Borough of Southwark v KA & Ors [2016] EWCOP 20 at 77).

Just because someone has capacity does not mean that they aren't vulnerable. The recent case of Re W: Capacity to Engage in Sexual Relations & Marry [2025] EWCOP 32 (T2), has helped clarify the law's position on capacity and the treatment of vulnerable people. The vulnerable person in this case was a 32-year-old woman, W, who had been diagnosed with a learning disability. The local authority was concerned that she was susceptible to coercion and therefore lacked capacity to engage in sexual relations or marry.

The court looked at the evidence laid before it, including situations W had shown that she was unable to say no even if she was uncomfortable or knew it was wrong. However, it was held that W did have capacity to engage in sex and marry, even if she did not have capacity to make decisions on who she could be in contact with. The Court of Protection was careful to emphasise that there was not a higher threshold for capacity imposed on disabled people. W had the capacity to make the decisions but would need the support of the Local Authority to exercise that capacity.

If you think that your loved one may have the capacity to make a decision but are still vulnerable, Re W makes it clear that steps can be taken to create an environment which helps them retain their capacity to make certain decisions and support them in their decision making.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.