Nottinghamshire County Council v JW and SW [2026] EWCOP 13 (T2)
Issue: Whether JW’s borderline intellectual functioning and difficulties in executive functioning met the diagnostic and causative nexus limbs of the Mental Capacity Act 2005, such that she lacked capacity to make decisions about residence, care and contact involving her husband, SW.
Judge: HHJ Rogers (sitting in retirement)
Date: 19 March 2026
Why this matters for NHS Trusts
Many patients present with borderline intellectual functioning, emotional vulnerability, or complex relational dynamics. This judgment provides clear guidance on when such factors do (and do not) meet the statutory threshold for incapacity under the MCA 2005.
Background
JW, aged 57, and her husband SW have significant physical health needs and now live separately in care homes. Concerns about coercive and controlling behaviour by SW prompted prolonged Court of Protection proceedings. In 2025, Poole J dismissed an appeal against findings of coercive and controlling behaviour made by HHJ Rogers, but expressed doubts about whether JW’s borderline intellectual functioning, with an IQ of 79 (8th percentile), met the diagnostic requirement under s.2 MCA or could establish the required causal link with any inability to decide.
The case returned to HHJ Rogers in 2026 for a full capacity determination.
The Application
The local authority sought declarations that JW lacked capacity to make decisions about residence, care, and contact – particularly decisions involving SW. Dr Todd, consultant clinical psychologist, initially opined that JW lacked capacity in all domains, largely based on her “minimisation” of risks associated with SW.
Capacity
Functional Test
The judge found extensive evidence that JW could understand, retain, and use or weigh relevant information – even where her weighing process was emotionally influenced or reflected an unwise preference to maintain her relationship with SW. HHJ Rogers found that a minimal ability to assess information – such as the risks posed by SW’s manipulative behaviour – was not the same as an inability to use and weigh and therefore did not meet the threshold to satisfy the functional test. JW demonstrated consistent decision making abilities across other areas of her life and was frequently “clear and articulate” when engaging with her Accredited Legal Representative.
Diagnostic Test
Dr Todd’s diagnosis of borderline intellectual functioning was accepted, but the judge held it did not, on the facts, amount to a qualifying “impairment of the mind or brain” for the purposes of the MCA. Borderline functioning sits on a continuum and is qualitatively distinct from a “significant learning disability,” which appears in the MCA Code of Practice examples.
- Causative Nexus
Even if borderline functioning were a qualifying impairment, the judge held that JW’s difficulties in decisions involving SW were driven not by cognitive impairment but by the emotional dynamics of the relationship. Any difficulty arose because of SW, not because of an impairment of the mind or brain.
Outcome
JW was found to have capacity in all relevant domains so the proceedings were concluded. The court made no findings under the inherent jurisdiction, though it acknowledged JW’s ongoing vulnerabilities.
Practical Implications for NHS Trusts
- Borderline intellectual functioning does not automatically meet the diagnostic test. Clinicians should avoid equating low cognitive scores with incapacity.
- Minimisation of risk is not incapacity. Emotional motivations, loyalty or relational pressures must not be confused with inability to use or weigh information.
- Causation must be explicit. If a person struggles with decisions involving a partner or family member, clinicians must identify whether the difficulty is due to impairment or interpersonal influence and where it is the latter, such matters do not fall within the domain of the Court of Protection.
- Robust assessment records matter. Where vulnerability or coercion is suspected, clear documentation of reasoning, options explained, and the person’s responses are essential.
Our medical law team regularly advises NHS Trusts on capacity assessments, coercion related cases and complex decision making under the MCA 2005. Please contact us if you would like some support.
Click here for the link to the full judgment.
Poole J’s judgment in the 2025 case can be found here.
