Posts in the ‘Article’ Category

#JusticeforLB – an end to indifference: An 8 day journey to #107days

Posted on: July 4th, 2014 by Jess Flanagan

Justice for LB

I do not believe that I am indifferent, nor have I ever been, in respect of issues affecting the most vulnerable adults within our society. By the very nature of my job, I am not indifferent. I checked the dictionary – ‘Having no particular interest or sympathy; unconcerned.’ I’m full of interest and sympathy and quite frankly, very concerned about these issues.

I confidently told a client recently that I had never ‘lost’ a challenge to someone’s placement authorised by the Deprivation of Liberty Safeguards. I’ve just managed to see him moved to a placement closer to his home after 6 months in a rehabilitation unit he hated being in, located miles away from his family.  We are now well on the way to ‘proving’ (the joys of rebutting the evidence that has rebutted the presumption of capacity…) that he has capacity to make his own mind up about where he lives and receives care. I work hard to empower adults to make their own mind up and if they really can’t because the presumption of capacity really is rebuttable, I use all I can to argue them to a position closest to what they want. My clients are rarely disappointed.

Trying to work out how I can take my first steps to being part of #JusticeforLB, looking at Connor’s manifesto I realised that where I can and do make a difference is here: ‘Prevention of the misuse/appropriation of the mental capacity act as a tool to distance families and isolate young dudes.’ I could write books on this topic and have hinted at it elsewhere in posts over the past 18 months. It infuriates me when the MCA, ‘best interests’ and ‘safeguarding’ is cited as justification (often without evidence to back it up) to keep vulnerable adults away from their loved ones, often at times when they need their support the most. I spend a lot of my time trying to pick this apart for my clients; often to success, but not without a lot of sadness and distress on the way caused by the very process created to ‘protect’.

The purpose of me blowing my own trumpet is to illustrate that by the very nature of what I do, and the effort I put in to achieve results for my clients, I don’t believe that I am indifferent.

In July last year I was referred (by the incredible Lucy Series) to Sara’s blog: ‘My daft life’. The day I visited Sara’s site was 5 July 2013 and what I read made my heart sink straight into the pit of my stomach.

‘Our beautiful, hilarious, exceptional dude was found unconscious in the bath in the unit before a planned trip to the Oxford Bus Company.’

Like everyone I felt terribly sad and shocked for Sara and her family. I started to follow Sara on twitter shortly after, I read a couple more of her posts and I learned that her son had died due to the indifference of a system we expect to protect and care. We later learn it was preventable (the stomach sinks even further). Scrolling back through some of the previous posts, I realised the efforts she had to go to in order to see her son, to give him any semblance of the normality they had shared as a family for the majority of his life. It sounded similar to many of my cases, and many of the cases you read about in Court of Protection judgments. But the way it ended was not the same. Connor missed out on the chance to go back to his family because he was left in the bath. Alone.

I then didn’t do anything else. I didn’t engage with Sara on twitter. I didn’t tweet about #justiceforLB and I didn’t get involved with the movement that was so rapidly sweeping across social media in my world.

I saw it. I didn’t engage. I have recently developed a gnawing feeling that by not engaging in the way I do with other campaigns and issues in my world (a mental capacity, mental health, health and social care law world) by blogging, tweeting and chatting about it, I was indifferent to Connor’s death.

So, to make sure that anyone reading this can question their indifference, this post is for you, and for Connor and Sara. It is also for Nico and his mother and for everyone who is working so tirelessly to obtain #justiceforLB and #justiceforNico and justice for just about everyone who falls victim to the system that is supposed to protect, empower and care for learning disabled dudes.

This post tracks the period of 8 days in June – from day 1 when I recognised my indifference, accepted it and then did something about it.

The next stage was to make sure I got a piece ready in time to contribute to the #107days campaign. I’ve just made it, but as Sara has assured me on several occasions; it is never too late.

So, I dedicate this post, in the nick of time, to the final day of #107days, almost a year to the day I read about Connor and to the fight that many, many family members have on their hands in respect of their loved ones.

Day 1 – the LALY awards:

I was a finalist in the Social & Welfare category of the Legal Aid Lawyer of the Year Awards 2014 and therefore had the joy of attending the ceremony where I was surrounded by many of the legal aid greats that I had ‘grown up’ reading about, hearing about and seeing their names in judgments and in the press. See my colleague, Jo Burton’s post where she applauds legal aid and some of the awesome people we saw.

Amongst all this, we heard about Charlotte Haworth Hird and how she had successfully won an independent investigation into Connor’s death. I didn’t know that and became acutely aware that I really should have done. See, I knew that the Trust had produced a report, I knew that Sara was not happy with it, but I hadn’t read the report and I hadn’t engaged in the social media storm that filled my twitter feed daily. That evening, I tentatively drafted my first ‘#justiceforLB’ tweet congratulating Charlotte. I was interested.

As I’ve said above, I knew about Connor and I knew about the campaign #107days. I’m ashamed that I didn’t know what it was all about. Until that first tweet, I’d not read further than those first few posts back in July 2013.

I was starting to move away from indifference. It felt good.

Day 6 – #107days day 87: Swan Advocacy Conference in Trowbridge – ‘Statutory Safeguards: Protection or Control.  The role of independent advocacy in finding the balance’

Jo and I were asked to present a solicitor’s perspective on this question. We chose to present a discussion entitled: ‘Protect and Empower: a legal perspective.’ The reason we chose that is because the basis for much of the domestic legislation used to protect and / or control a vulnerable adult (depending on which way you look at it) is based in Human Rights legislation, most of which is founded in caring, protecting and empowering citizens.

We decided to talk about empowerment as we will often use the Mental Capacity Act 2005 to promote someone’s ability to make life-changing decisions themselves, or at least have a pretty big say in what they want to happen about them. We often use this in our work to as a tool to counter decisions that to the individual feel paternalistic, over-protective and controlling, in order to support his or her aims, wishes and feelings. The role of an advocate in these types of situations is hugely important and we felt that by sharing the legal framework with advocates, they would be more confident to empower those that they support.

The day was ably chaired by Mervyn Eastman, in whom I know I have made an ally in the fight against the cuts to legal aid for those who most need it and who kept the day to order, and provided a wonderful touch of sensitive humour at the times when it was most needed. I also met Graham Enderby (a genuinely lovely man) – the foster carer of Mr HL –whom we have to thank for the Deprivation of Liberty Safeguards in the UK. It was incredible to hear him bring alive the man behind the case that as a lawyer, I know so well.

To end the day, which quite frankly was a true show of the passion, love and dedication professionals in this world have for the work we do in such difficult financial times, Dr Noelle Blackman presented on the issue of ‘Death by Indifference.’

This excerpt from Swan  Advocacy’s website summarises it better than I could:

‘Finally Dr Noelle Blackman from Respond ended the conference with an incredibly moving presentation on the dramatic consequences that ‘indifference’ can have on the lives of people with a learning disability – particularly in assessment and treatment units.  Noelle began the presentation with a beautiful montage of pictures showing  Connor Sparrowhawk  at his happiest – surrounded by his loving family having fun.  

Noelle went on to highlight the tragic cases such as Connor and Nico which demonstrate the tragic impact of indifference.’

As the tears fell whilst watching the montage for the first time, I truly accepted that I had been indifferent to this campaign and to this social movement (because I really believe that it is that!) for the past 11 months.

Well, no more I thought. On the train home from that event, I tried to rationalise my inaction. Questioned why I didn’t get involved sooner. I started to have some answers, but the Eureka moment didn’t come until Day 8 of my journey.

Day 8 – Face up to your mistakes and the DOLS conference 

The week ended with a trip up to London to attend Cardiff Law School’s Deprivation of Liberty Safeguards conference. It. Was. Incredible. It was fascinating to see Lucy (of The Small Places) and Dr Phil Fennell give our DOLS regime a ‘Human Rights Act Health Check’ (I think it is a little unwell) in such a masterful manner, to pick up tips about how I could apply Article 8 more frequently in my Court of Protection cases, and generally just to be surrounded by LOADS (and I mean loads) of professionals involved in the world of the MCA and DOLS. I also got to meet Mark Neary, see Graham again and I was able to meet and speak to Sara. What a week of social welfare law ‘celeb stardom!!!!’

Paul Bowen QC (a lawyer I hold in very high regard) dedicated his talk on that day to #Day89 and that gave me the green light to fully appreciate that there was no need to be worried about holding back any more.

Never one to do anything particularly quietly, or reverently, what I did about it was apologise to Sara. And not in the way some of us in the days of advanced technology apologise over text, twitter or email, but face to face. I had the opportunity so why not take it? I had the real privilege of meeting Sara and telling her about my indifference. I’m sure I garbled it and I am sure it made me feel a lot better than it did Sara, but there we go – I had owned up and started to do something about it. But I didn’t want it to end there.

I promised to write about it and although it has taken some time – here it is.

Day107 – Why and what next?

So – why was I indifferent? Why was I seemingly unconcerned with the campaign (I don’t think you’ll get me to admit I had no sympathy) and why didn’t I have any particular interest in getting something out there sooner? I think it was based in fear. A reluctance of being over political on social media and worrying how that might somehow interfere with the work I do.

Every organised event I attended within those 8 days exposed Sara’s campaign to me through professionals, ranging from my peers from the legal profession, academics, counsellors through to those who have experienced tragic loss and family trauma by the indifference of services. That gave me the confidence to step away from my fear and the indifference and do something about it. I thought owning up would be a start. This post was the next step and I have some ideas about the next thing to do…

But for now, I leave you with this. Throughout those 8 days I came to accept that whilst I might have initially been indifferent to this particular campaign through fear and some selfishness, overall, I’m not indifferent to the cause. On (my) Day 6 the Government published it’s response to the House of Lords Select Committee Report on the Mental Capacity Act 2005. This is not the post to be dealing with this report in any detail, but suffice to say I think that the government has quite a few more days of self discovery to convince us that it is no longer indifferent to improving the lives of the most vulnerable within our society – particularly the lives of learning disabled dudes.

Educating those who need to know about the MCA is one thing – action is quite another. Day107 is only the beginning.

107daysflyer

 

Transforming Legal Aid – restricting access to justice in the Court of Protection?

Posted on: February 6th, 2014 by Jess Flanagan

The Legal Aid Agency recently published this statement on its website:

Two important reforms which are part of the legal aid transformation programme go live from Monday 27 January.

These are:

1. Borderline merits – removing legal aid for civil cases with borderline prospects of success 

2. Crown Court eligibility – introducing a financial eligibility threshold

 As a civil lawyer I am concerned predominantly with the cuts to civil legal aid. That cases now initially assessed as having ‘Borderline’ merit will no longer benefit from legal aid, troubles me greatly.

In June 2013 I responded to the Ministry of Justice consultation: Transforming legal aid: delivering a more credible and efficient system’ (Ministry of Justice, April 2013). In September, a paper I wrote on the impact that the proposed ‘transformations’ would have on access to justice in the Court of Protection was published in the Elder Law Journal [2013] Eld LJ (Issue 3 Volume 3), by Jordans Publishing (please see http://www.jordanpublishing.co.uk/publications/private-client/elder-law-journal for further information on this excellent publication).

I expressed grave concern at the proposal to remove borderline cases from the scope of legal aid, and I have obtained permission to replicate that part of my article on my blog. What is set out below is a condensed version of the article, a full copy of which can be obtained by approaching Jordans Publishing direct.

Over the years I have been involved in legal aid practice, I have frequently had to adapt to the changes, cuts and withdrawals of various services for clients and providers alike. I have acted and continue to act for elderly clients with cognitive impairment who have been deprived of their liberty in a care home contrary to their wishes, and for family members of dementia sufferers who are trying desperately to uphold the welfare wishes of their loved ones in the face of risk averse and protective public authority decision makers.

The purpose of the paper was to discuss the impacts of the proposals set out in the Consultation Paper  Transforming legal aid: delivering a more credible and efficient system’ (Ministry of Justice, April 2013), which included proposals to cut civil legal aid that in my view will fundamentally change access to legal representation in welfare proceedings in the Court of Protection. In turn, this will result in restricting access to justice in some of the most complex and significant issues concerning vulnerable and elderly people.

Information about the types of disputes that the Court of Protection hears can be found elsewhere in this blog and on the Elderly Care and Court of Protection. The current process for obtaining Legal Aid for disputed welfare applications in the Court of Protection (excluding applications in relation to the Deprivation of Liberty Safeguards (DOLS) brought under s.21A Mental Capacity Act 2005 (MCA), for which there is no means assessment), is summarised below and in more detail in the paper.

In order to benefit from legal representation funded by Legal Aid within contested welfare proceedings, the circumstances of the matter in dispute had to concern an individual’s life; liberty; physical safety; medical treatment; capacity to marry or to enter into a civil partnership; capacity to enter into sexual relations; or right to family life. In addition the court must have ordered or was likely to order an oral hearing at which it was necessary for the applicant for funding to be legally represented. Given the nature of the disputes often before the Court of Protection, obtaining funding on merits is not particularly onerous.

Funding for Court of Protection matters was barely affected by the recent changes to public funding brought about by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) but there are some key changes that would be brought about if the proposals set out in the consultation document were to come into effect.

The Importance of accessing Legal Representation

This section appears slightly differently in the article, but it is important to understand the importance of legal representation in particularly complex matters. This leads on to the point I make below about the importance of funding being available for what initially may be viewed as ‘borderline’ cases.

When a public authority is involved in a Court of Protection case, experienced and prominent counsel will be instructed to advise and represent the relevant department throughout the proceedings, preparing information in a way the court can access quickly and efficiently, and providing their client department with expert advice in a timely fashion. Usually, a social worker can access legal advice and representation from their Local Authority legal department without the financial concerns a lay person will experience.

Section 4 MCA 2005 sets out that, when determining what is in the best interests of someone who lacks capacity to make the decision themselves, the decision maker (including a Judge of the Court of Protection) must consider all relevant circumstances and must take into account the views of anyone engaged in caring for the person or interested in his welfare and where possible, consult them as part of the best interests analysis.

Some carers or family members find it difficult to express exactly what they need to tell the court. Some are too scared or feel threatened by the process, with the result that their views are not put to the court in a way it can properly consider. Some may become defensive or too difficult for a public authority opponent to work with – having access to expert legal advice can assist to smooth the path greatly.

A similar point can be made in respect of ‘P’ (the person that the court is concerned with) as section 4 also requires the decision maker to take into account P’s past and present wishes and feelings. On occasion the court will want to hear from P him/herself or through a litigation friend if P lacks litigation capacity. If that litigation friend wants P to benefit from legal representation, which is often the case when the Official Solicitor is invited to act in that capacity, the same process for obtaining legal aid needs to be undertaken.

The point I make is this – in complex proceedings, individuals need to be represented by experienced lawyers who can assist them in providing the court with information that may be fundamental to making a best interests decision that is in accordance with the provisions of MCA 2005. A separate point is that legal representation is often required to ensure that there is equality of arms between the parties.

The first question relevant to my type of work concerns the ‘Residence Test’. I will discuss this in another separate blog post at another time, as it may be relevant to an appeal that has been sought in the recent case concerning ‘habitual residence’, Re PO.

Q6. Do you agree with the proposal that legal aid should be removed for all cases assessed as having “borderline” prospects of success? Please give reasons.

This paragraph appears exactly as it does in the original article

Under the Access to Justice Act 1999 (A2J) and LASPO, in order for an applicant to benefit from civil Legal Aid their case must satisfy the merits criteria. Where legal representation is required, this includes looking at the likely costs of the case, the prospects of success and the outcome sought by the applicant for funding.

Under both A2J and LASPO, in order to benefit from Legal Aid the applicant’s solicitor will need to give an estimate of the prospects of successfully achieving the outcome the client wants – by indicating whether the prospects are very good (80%), good (60-80%), moderate (50-60%); borderline or poor.  Where the prospects are moderate or poor, the solicitor must provide an explanation as to why funding should be granted.

In the normal course, funding is generally only available for cases that are assessed as having moderate to very good prospects of success. However, when the matter is of ‘overwhelming importance’ to the applicant, or the case is of ‘significant wider public interest’, the requirement is to have at least borderline prospects of achieving the outcome desired by the applicant.

The Civil Legal Aid (Merits Criteria) Regulations 2013 established under LASPO maintain the merits and prospects of success criterion and again, if the case is of significant wider public interest or is of overwhelming importance to the individual it only has to have borderline prospects of success. 

Court of Protection cases more often than not involve circumstances which are of overwhelming importance to the applicant and often bring into question ECHR rights. The terms of the Funding Code under A2J recognised this by ensuring that cases could be funded even where the evidence available at the point of making an application for funding was more supportive of restrictive decision making, usually contrary to what P and/or family members are seeking. In these types of cases it would be difficult to say that a case had moderate, or very good chances of success, due to the weight of the evidence available at the time. This is most evident in DOLS challenges made pursuant to Section 21A MCA 2005. Although the application for funding should include representations that the applicant has some relevant argument to pursue against the authorisation depriving them of their liberty, a fundamental human right is at stake and in my experience this is the primary issue in obtaining funding, even if there are only borderline prospects of success at the time of the application.

In cases where a fundamental human right is not engaged, one has to be slightly more persuasive in arguing that a case has more than borderline prospects of success. In some cases, it is sometimes difficult to see any prospects at all when you have only seen the evidence submitted on behalf of the opponent, more often than not a public authority.

As an adviser I am frequently presented with vast amounts of ‘evidence’ of safeguarding concerns that portray a family member or members as being abusers or culpable of neglect.  Experience has taught me such information cannot always be taken at face value. Public bodies are very able to put together large bundles of documents to discredit a particular carer, who would find it difficult to dispute what is said due to lack of time (normally due to their caring role) or lack of understanding as to how to go about addressing the allegations. Once legal aid has been granted and further evidence requested, analysed and checked against what was originally relied upon by an Authority, the picture is not always as bleak.  One example is a case where until recently an elderly gentleman was the sole carer for his wife who has had a dementing illness for over 25 years. Following a visit by an official from a public authority, notes were entered into the client’s record that, in the view of the family, put a negative spin on an otherwise positive (if not challenging) set of circumstances over the previous 5 years.  These notes resulted in concerns being raised amongst other professionals who otherwise had very little knowledge of the family or the history, causing enormous tension and mistrust of the husband’s ability to care appropriately for his wife. Had I not intervened, this less than accurate picture may have resulted in an elderly lady who wanted to live at home and be cared for by her husband being inappropriately placed into a care home.

When acting for an individual through a litigation friend, instructions can come from the Official Solicitor (the ‘OS’ – litigation friend of last resort) often very shortly before a hearing. A lawyer will have a very limited amount of time to consider the papers and make an application for funding in the normal way. More frequently, applications to the Court of Protection are made by public authorities seeking confirmation that its agents have made, or intend to make the correct and lawful decision in the best interests of an individual who lacks capacity. In these circumstances, the initial evidence is often presented in such a way to suggest the public authority’s decision is the ONLY legitimate option. Again, on further investigation, this is not always the case. Sadly this cannot be confirmed without some form of funding in place due to the huge amount of work involved. In these circumstances, where the merits look pretty bleak, assessing a case as having borderline prospects of success is the only way forward.

Without the ability to obtain public funding for borderline cases in Court of Protection matters, many individuals will be denied the benefit of having evidence against them properly tested and investigated. Judges may have no option but to simply ‘rubber stamp’ decisions made by public authorities that are based on incorrect interpretation of limited evidence. Judges will no doubt retain the integrity and fairness that is instilled within them and look at the evidence critically, but the court cannot itself seek specific evidence (other than directing reports and statements to be filed).  This is a risk that should not be taken.

The purpose of the proposals is to save costs to the Legal Aid bill. I suggest that removing Legal Aid for borderline cases in circumstances where the issue is of overwhelming importance to the individual concerned will not achieve this aim. Furthermore, the resulting pressure placed on other public budgets will increase. Family members who are not able to obtain funding for legal representation will often wish to pursue their case in any event as the outcome is so important to them and their loved one. In cases to determine whether an elderly person must be transferred to, or remain in a care home, some clients say the outcome sought is the difference between life or death. In my experience, individuals pursuing a case as litigants in person will be at increased cost to the public authority opponent and increase the strain on court time. The public authority will also have the ability to instruct the most expert counsel in Court of Protection proceedings, leading to the system becoming unfair and weighted heavily in favour of the public authority.

Post 27 January 2014, we shall hold our breath and wait and see what happens to those clients who may now not benefit from legal representation on the basis of the evidence stacked against them.

The final question that I responded to was Q33: Do you agree with the proposal that fees paid to experts should be reduced by 20%? I said no and argued that this would drive the effective experts away from providing reports. This would in turn result in poorer standards of reports, potentially leading to increased costs in arguing against the findings and a risk of the wrong decision being made on behalf of a vulnerable adult.

Where next?

‘The cuts may not have yet hit welfare disputes in the Court of Protection head on, whether under LASPO or in the current proposals, but if they are implemented, the proposals will make obtaining the right advice and the best evidence to uphold fundamental rights and choices even more difficult than it is already.’ This is from the original paper. Sadly, as we now know, the proposals are already starting to take effect. We await the publication of the response in the next couple of weeks. I have a feeling I might be re-visiting the other points raised in the original paper again.

 

Court of Appeal on the issue of capacity to consent to sexual relations: IM, LM, AB and LCC [2014] EWCA Civ 37

Posted on: January 27th, 2014 by Jess Flanagan

Current case law relating to an individual’s capacity to consent to sexual relations or to marry is confusing. Arguments have been raised in many cases concerning whether capacity to consent to sexual relations is person, or act specific. It was generally considered settled that the assessment of capacity to marry was based on the general decision to marry, as opposed to on the basis of marrying person X.

The importance of getting the assessments of capacity right is crucial. The Mental Capacity Act 2005 excludes certain decisions from being made by anyone else on behalf of the individual found to be lacking capacity. This list includes an exclusion of best interests decision-making on behalf of anyone in connection with sexual relations or marriage. So if someone is found to lack capacity to make those personal and specific decisions for themselves, they cannot engage in sexual relations and they cannot marry. The rationale for this is either because the decision is so personal to the individual concerns, or because the matter is covered by other legislation. Another part of the Act does not permit anyone to vote on behalf of an individual who lacks capacity.

So if best interests decisions cannot be made in those areas, a finding that someone lacks capacity will have a huge impact on that person’s life. I have talked about the impact of assessing someone as lacking capacity to engage in sexual relations in part in my analysis of the case of DE.

The issue has been very recently considered by the Court of Appeal in the case of IM v LM & Ors [2014] EWCA Civ 37, where the Judges gave careful consideration to the correct approach to assessing capacity of ‘protected persons’ (an individual who may or may not lack capacity on a particular matter, for which judicial determination is required). The protected party was a woman of 37 who had a history of drug and alcohol abuse. She had 3 children, none of whom lived with her. When in hospital receiving treatment for difficulties associated with excessive alcohol use, she suffered cardiac arrest leading to hypoxic brain injury, causing significant amnesia with significant moments of lucidity. Restrictions were placed on her contact with her partner (with whom she had lived for a number of years), who subsequently issued proceedings in the Court of Protection, seeking declarations that contact with him was in her best interests. The Court of Protection determined that she lacked capacity to make decisions concerning residence, care and contact with others and gave guidance on best interests for those particular decisions. She was determined as having the mental capacity to make decisions about whether or not to have sexual relations on the basis that she understood, in broad terms, the nature of the act. The Court of Protection judge felt that there was insufficient evidence to rebut the presumption of capacity and that in any event, the measures that were in place concerning residence and contact were currently sufficient to promote her well-being (set out at paragraph 18 of the judgment).

Her mother appealed the decision and amongst other reasons, the main thrust of the appeal was that the Judge failed to consider any person-specific element when assessing her capacity to have sexual relations and if that approach is applied, she did not possess capacity to consent to sexual relations.

Finding that the Court of Protection Judge had adopted essentially the correct approach and had reached the correct conclusion, the lengthy judgment takes the reader through the history of thinking in respect of capacity to consent to sexual relations. This shows a divergence of opinion between judges; some are of the view it is a person specific act: ‘it is difficult to think of an activity which is more person and situation specific than sexual relations’ (Baroness Hale in the Criminal matter R v Cooper [2009] 1 WLR 1786) and others, mainly civil cases, that it is act specific and a ‘question directed to the nature of the activity rather than to the identity of the sexual partner.’ (Munby J (as he then was) in Local Authority X v MM [2007] EWHC 2003 (Fam)) However the Court of Appeal Judges reconcile the divergent approaches on the basis of the different contexts in which the judgments were given (at paragraph 75): “We regard the passages that have been quoted… as being correct in drawing a distinction between the generaly capacity to give or withhold consent to sexual relations, which is the necessary forward looking focus of the Court of Protection, and the person specific, time and place specific, occasion when that capacity is actually deployed and consent is either given or withheld which is the focus of the criminal law.”

The Court of Appeal had been asked to provide a pragmatic and consistent solution to the issue of assessing capacity to consent to sexual relations and agreed that to insist upon an assessment with a person-specific element would be ‘totally unworkable’ and stated that if it were for no other reason; ‘capacity to consent to future sexual relations can only be assessed on a general and non-specific basis.’

The judges were clear in the view that a person of capacity does not typically consider a huge breadth of information before making a decision whether to consent to sexual relations and to put that burden on an individual who may lack capacity due to mental disorder or illness would be paternalistic and a ‘derogation from personal autonomy.’ I would also suggest that doing so would be stepping even further away from the principle of the UN Convention on the Rights of People With Disabilities (whilst not part of our domestic law) that people with disabilities should not be treated any differently to those without.

To conclude, on two occasions the Judges reiterate one of my favourite quotes from Hedley J in A NHS Trust v P (briefly referred to in an earlier post) and I think it emphasises the reasoning behind the decision well; “the intention of the Act is not to dress an incapacituous person in forensic cotton wool but to allow them as far as possible to make the same mistakes that all other human beings are at liberty to make and not infrequently do.”

Given the movement in cases concerning the capacity to consent to sexual relations, there are some who are of the view that the capacity to marry may be looked at again in more detail in the future. There is a lot to be said for such personal decisions being person (ie the person who is going to be the Husband, Wife or sexual partner of the person concerned) specific but perhaps more to be said for a test that is practical and capable of being applied in the real world.

For a slightly less lengthy version of this post, and information about a seminar my firm is running on the subject of ‘Adults, Incapacity and their Personal Lives’ please visit Clarke Willmott’s Elderly Care and Court of Protection blog, here.

CoP sterilisation order; not as paternalistic as it appears

Posted on: August 16th, 2013 by Jess Flanagan

Reading that title may cause some discomfort and re-ignite the concerns about the ‘secret court’ that places family members in prison for supporting their loved ones. But having read the judgment, I think that this case should actually herald a success for the Mental Capacity Act and the Court of Protection. I will explain why.

The press has widely reported this case since the final hearing in July/August of this year and today, the judgment has been published enabling disciples of the Mental Capacity Act 2005 to fully appreciate the rationale behind the decision made by Mrs Justice Eleanor King DBS. This judgment is important to get to grips with, especially in the wake of the Mental Capacity Act Select Committee currently hearing evidence as to how restrictive the MCA has been in practice in decision making for those who cannot, or may not be able to make certain decisions for themselves.

The Language of LD…

When reading this, I was doing so with my twitter feed running on screen and I became involved in an interesting conversation about the language used in the judgment. There was concern that the fact that the first words were ‘DE suffers from a learning disability’ was antiquated, and sparked a discussion that the language used in such judgments does nothing to empower those with learning disabilities. From my discussions, it looks like this might be an area ripe for research and it looks like something may come of it. Watch this space.

What comes across from the judgment is that DE, who does have a learning disability (as opposed to suffering from one) has an excellent support network and a lot of freedom. His parents are key to his success and are praised highly by the Judge. Perhaps in contrast to many individuals who have learning disabilities, DE has a girlfriend with mild learning disabilities herself, and is supported and encouraged to maintain that relationship. This relationship is said to be ‘remarkable and very precious.’ This is a nice sentiment, although it separates an individual with learning disabilities from people for whom having emotional and sexual relationships are the ‘norm.’

Background to the proceedings

As a result of his longstanding and loving relationship with PQ, she gave birth to DE’s child in 2010. PQ was deemed as being unable to care for her child safely, but the Family Court awarded care of the child to her parents, with whom PQ lives. She is now able to take the child out with the support of a support worker, or her parents. Sadly, due to the resultant turbulence in the Local Authority issuing Care Proceedings in respect of the child DE’s life was turned upside down, causing him considerable distress.

He didn’t appear to comprehend that what he and PQ did together led to her pregnancy and the birth of a child. His parents were concerned about not being able to properly supervise the couple to ensure that this didn’t happen again and sought medical advice as to whether he should have a vasectomy.

The evidence that came out throughout the court proceedings was, in short, that the birth of his child led to a reduction in his independence and confidence, caused his relationship to breakdown, caused him (and his parents) distress and is viewed upon by DE himself as a very negative point in his life.

Lack of capacity to consent to sexual relations

Further to enquiries made by DE’s parents, the NHS Trust sought the involvement of the Court of Protection to determine the way forward; either in ruling that DE had capacity to consent to a vasectomy, or if not, whether it would be in his best interests.

An initial question for the judge was whether or not DE had capacity to enter into sexual relations. The evidence that he lacked the mental capability to do so was accepted and agreed between everyone involved.

This sparked safeguarding concerns about the sexual relationship between PQ and DE because it is unlawful for anyone to have sexual intercourse with someone who cannot consent to sexual relations. This has recently been an issue in another case before the Court of Protection. Subsequently, the couple were supervised more stringently and resulted in a loss of freedom that DE previously enjoyed in his life. PQ felt the pressure immensely and completely withdrew from her relationship with DE, leading to further loss and his life as he previously knew it had completely changed.

The relationship did resume and it was clear that the couple wanted to continue to be sexually intimate. Work was carried out to give DE the opportunity to understand what is involved in sexual relationships and was later determined to have the mental capacity to consent to sexual relationships. Whilst this removed the safeguarding concerns and some of the restrictions on carrying on his relationship with PQ, the future needed to be considered. No one close to him wanted all the good work in promoting DE’s independence to be pushed back even further.

The judge agreed the evidence that whilst he had attained capacity to consent to sexual relations, it was accepted by all parties that he does not have the capacity to consent to contraception and the question for the judge was whether or not it was in DE’s best interests to have a vasectomy.

As part of the assessment the Judge was required to carry out to determine best interests, DE’s wishes and feelings would need to be considered.

DE’s wishes and feelings on place of residence, having another child and contraception

DE had consistently said to his long standing LD nurse that he didn’t want to have anymore children and this was supported by evidence from the parents. I am pleased to report that the Judge undertook a very rigorous analysis of DE’s wishes and feelings in respect of whether he wanted more children and whether he wanted to have a vasectomy. I am constantly urging practitioners to carry out this very same review, especially where there is evidence of capacity in some connected areas, such as in this case.

The judge, in this case, was able to satisfy herself that DE did not want another child, so in actual fact, the resulting judgment was not as draconian or paternalistic as one may have assumed from the press reports that came out before the judgment.

What I like particularly about the reasoning behind this decision is set out in paragraph 53 of the judgment:

‘I approach DE’s wishes and feelings in relation to a vasectomy with the utmost caution. DE does not have the capacity to consent to a vasectomy and that must inevitably colour the court’s approach. In my judgment the safer approach is to conclude:

1) DE is clear and consistent that he does not wish to have another child

2) DE does not have the capacity to consent to contraception; it is therefore for the court to consider whether a vasectomy is or in not in his best interests’

Best interests considerations

In determining what was in DE’s best interests on that issue, she considered whether alternative contraception could be used and decided not. Experts confirmed that whilst the operation was said to carry 0.5% likelihood of scrotal pain, that, and any other risk was out-weighted by the benefits.

The Judge went on to look at the consequences of a further pregnancy and analysed in detail what the future could hold for him in the event that she did not order that the vasectomy was in his best interests. Here she commented that whilst DE has the capacity to consent to sexual relations, and the earlier restrictions on his contact with PQ had been relaxed, there would have to be a level of supervision that no one would believe to be in his interests. If the risk of pregnancy was removed, then work could be done to increase his independence to the point that it was before PQ fell pregnant.

She later surmised that his hard earned achievements must be ‘treasured, valued and measured in the same terms as the winning of an Iron Man or completing the Paris to Peking rally would be for a person without his disabilities.’ Reverting to that level of independence was a key factor at the forefront of everyone’s minds in this matter and I think it is really indicative of society moving towards individuals with learning disabilities being empowered and supported in obtaining the most independence possible.

The law

The judge happily ensured that in making the decision to remove the chance of DE becoming a father again would not be a breach of his Article 8 (European Convention on Human Rights) right to family life. To do so she was invited to balance the right for him to be a father against the right for him to choose whether he wanted to be a father.

She rejected the argument of the Official Solicitor that Article 8 should be a starting point and as I believe most Court of Protection practitioners would have done, referred to the judgement of Lord Justice Davies in K v LBX [2012] EWCA Civ 79 that the general approach under the MCA is laid down in section 4 (to determine best interests) and ‘to add further legal starting point to the act is not called for.’

The Judge also gave a very helpful review of reported case law in determining best interests, which I shall repeat her for ease of reference to those who may want to refer to it in future (it can be found at paragraph 84 of the judgment):

The courts have considered how s4 is to be applied in a number of reported cases. There is consensus that as matters stand the following should be borne in mind:

i) The decision must be made in DE’s best interests not, in the interests of others although the interests of others may indirectly be a factor insofar as they relate to DE’s best interests. Re Y (mental incapacity:bone marrow transplant [2007] 2 FCR 172 and Re A (Male Sterilisation) [2000] 1 FLR 549.

ii) The court is not tied to any clinical assessment of what is in DE’s best interests and should reach its own conclusion on the evidence before it Trust A and Trust B v H (An Adult Patient) [2006] EWHC 1230.

iii) Best Interests is an objective test Burke v GMC [2005] EWCA 1003.

iv) The weight to be attached to the various factors will, inevitably, differ depending upon the individual circumstances of the particular case. A feature or factor which in one case may carry great, possibly even preponderant, weight may in another, superficially similar case, carry much less, or even very little, weight. Re M.ITW and Z and Others.

v) There is no hierarchy in the list of factors in s4 and the weight to be attached to the various factors will depend upon the individual circumstances: Re M.ITW and Z and Others [2009] EWHC 252 Fam [32].

vi) There may, in the particular case, be one or more features or factors which, as Thorpe LJ has frequently put it, are of “magnetic importance” in influencing or even determining the outcome Re M.ITW and Z and Others [2009] EWHC 252 Fam.

vii) Any benefit of treatment has to be balanced and considered in the light of any additional suffering or detriment the treatment option would entail Re A (Male Sterilisation) [2000] 1 FLR 549 at 560.

viii) The declaration should not be sought if vasectomy would be disproportionate and not the least restrictive step, risk management is better than invasive treatment A Local Authority v K & Otrs [2013] EWHC 242 [33].

ix) The decision is for the Judge not the expert. Their roles are distinct and it is for the Judge to make the final decision A Local Authority v K.D and L [2005] 1 FLR 851 [39] &[44].

In applying the various considerations the Judge agreed with the Local Authority responsible for supporting DE and heavily involved in doing so, concluded that ‘the evidence unequivocally points to an improvement in the quality of DE’s life in the event that he has a vasectomy.’

Mrs Justice Eleanor King was careful to perform a balancing exercise in coming to her conclusion and was unambiguous in setting out the factors she felt relevant, highlighting that the only factor against a vasectomy was in connection with the surgical procedure itself, but balanced against all the factors in favour, it was hard to see how she could make any different decision.

She stated that it was not a decision that the court can make lightly; ‘conscious as it is that for the court to make an order permitting the lifelong removal of a person’s fertility for non­medical reasons requires strong justification.’

Conclusion

What strikes me is that whilst the judgment began for many raising issues of dis-empowerment and suggesting that having a learning disability was something that one suffers, the outcome is the opposite of that. The Court of Protection, guided by the Mental Capacity Act 2005 has, through careful analysis of the law, supported this young man’s independent lifestyle by enabling and empowering him. Simply, having ruled that he should have a vasectomy is the one solution that will ensure that he will go back to lead the independent lifestyle he once led and maintain those relationships that are of great importance to him.

The House of Lords Select Committee investigating the success or otherwise of the Mental Capacity Act 2005 has recently heard evidence that improvement and education is required to ensure that the vulnerable are better protected by the law. I agree and am involved in cases where I am seriously concerned that supported decision making is worryingly absent, but this is one case that in my mind shows that on correct analysis of the existing legislation and case law, decisions can be made to support that of the individual. Capacity or not.