Posts in the ‘Legal’ Category

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.

Human Rights Begin in the Small Places (BIHR #HumanRightsTour 2013)

Posted on: October 10th, 2013 by Jess Flanagan

I’ve posted elsewhere that the driving force behind my desire to be a lawyer was a comment made to me by a family friend; ‘to change the law, you have to know the law.’ When I was younger, I thought that my goal was going to be achieved by being a politician, and perhaps even the Prime Minister. Quite frankly, after growing up a little and realising that it really would be a huge and thankless task and perhaps one I didn’t have the constitution to tackle. I decided that I would focus my efforts where I could properly make an impact and that was for each of my clients and everyone who I could pass on some of my knowledge and experience to.

When I meet people, I introduce myself as a solicitor. When I’m amongst those who know what one is, i say ‘Social Welfare’ solicitor. When I’m not, I say I’m a ‘help people’ solicitor. I strive to remain faithful to that in every contact I have.

Today I attended the British Institute of Human Rights ‘#HumanRightsTour 2013 and had a great refresher of human rights law. I was reminded of my university days. The huge global Human Rights atrocities were not easy to study nor fully appreciate when in my early twenties and although I was fascinated, it didn’t spur me to want to tackle the huge scale problems that so many excellent people deal with on a daily basis. What it did do was set the wheels in motion for the career path I finally chose. I wanted to help people, but on a one to one basis.

I now have the benefit of over 6 years advising vulnerable people under my belt and experience of applying Article 8 (right to private and family life) and Article 5 (Freedom from deprivation of liberty) to situations involving real people that I know. Today we were left with a message from the driving force behind the UN Convention on Human Rights, Eleanor Roosevelt who quite rightly said:

‘Where, after all, do universal rights begin? In small places, close to home – so close and so small that they cannot be seen on any maps of the world. Yet they are the world of the individual person; the neighborhood he lives in; the school or college he attends; the factory, farm or office where he works. Such are the places where every man, woman, and child seeks equal justice, equal opportunity, equal dignity without discrimination. Unless these rights have meaning there, they have little meaning anywhere. Without concerned citizen action to uphold them close to home, we shall look in vain for progress in the larger world.’

Together with every single person who attended the tour today and most people I meet in the course of my role as a ‘help people’ lawyer, I strive to look in the small places and help those who need it everyday.

On a final note, Another thing I learnt today is that I actually do know and understand quite a bit about human rights and intellectual capacity. I might even be nearly ready to start helping to change the law…

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.’


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.

The Residence Test

Posted on: June 4th, 2013 by Jess Flanagan

This proposal introduces a Residence Test for all people applying for civil legal aid. This has 2 parts:

 1. an individual would be required to be lawfully resident in the UK at the time that an appliction for legal aid was made; and

2. they must have been resident for at least 12 months continually.

 This test requires lawyers giving family, community care and housing advice to become immigration specialists in order to ascertain whether or not someone has a right to reside and how it can be evidenced. This is prior to legal aid being granted and as such, becomes another unfunded task for legal aid lawyers. Another incentive not to carry out these types of work.

 Whilst I do not have a professional view in respect of immigration or asylum cases, or indeed housing cases where an individual requires legal advice in respect of homeslessness, there will be times where foreign nationals will require representation for community care matters, including Court of Protection applications.

 Putting aside the well argued Human Rights points (please see response to consultation by the Housing Law Practitioners Association and the excellent briefing by the British Institute of Human Rights) the question that struck me is as follows:

 ‘What happens if a vulnerable adult, who may lack the requisite mental capacity to make decisions concerning their place of residence and care, is brought to this country by a member of their family against their will and arguably contrary to their best interests?’

 Section 63 of the Mental Capacity Act 2005 gives effect to the Convention on the International Protection of Adults and Schedule 3 to the Mental Capacity Act 2005 provides for mutual recognition of protective measures imposed by a foreign court, even if that court isnt situated in a country that has signed up to the Convention. By refusing a foreign national access to our court by virtue of refusing them access to legal aid and legal representation could arguably constitute a breach of this Convention, which entered into force on 01.01.2009. Currently, individuals would be able to access legal aid should they be financially eligible for legal representation in proceedings to try and sort out what is in their best interests.

 Will this individual be caught by the proposal? If they have been brought here within the past 12 months – yes. Does this mean that the individual concerned, if they come to the attention of the Court of Protection and subject best interests proceedings, will fall foul of the 2nd part of the Residence Test and even if  they are financially eligible for legal aid will not benefit from legal representation? Yes.   

 This cannot be right and I would suggest further analysis of implementing a test that threatens to undermine the rule of law and the princples of equality before the law and is set to deny whole groups of people access to the courts.

Providers to be paid for Judicial Review claims where permission is granted by the Court

Posted on: June 4th, 2013 by Jess Flanagan

 Q5. Do you agree with the proposal that providers should only be paid for work carried out on an application for judicial review, including a request for reconsideration of the application at a hearing, the renewal hearing, or an onward permission appeal to the Court of Appeal, if permission is granted by the Court (but that reasonable disbursements should be payable in any event)? Please give reasons.

Judicial review is a loegal process where the High Court is asked to consider a decision made by a public body in order to ascertain whether or not that decision was lawful and in accordance with the law. If it is not, the court will compel the public authority to make that decision again, following legal and proper processes. The purpose of Judicial Review is to ensure that when a public body is carrying out public functions it discharges its legal duties, does not abuse, misuse or exceed  powers and avoid breaching articles of the European Convention on Human Rights. Proceedings are often complex and concern decisions affecting the most vulnerable within our society.

The proposal set out above risks forcing specialist providers out of providing advice and assistance. This will in turn reduce access to justice for some of the most vulnerable within our society.

If providers are not willing, or able to take the risk of taking an application through to the permission stage, they may not be able to continue with this type of work, with the result being that which is set out above, in addition the amount of decisions of challenges to public authorities will be reduced. Some may say that this is a happy consequence for the Government – but it undermines one of the fundamental principles of a democracy governed by the rule of law – the ability of every citizen to hold public officials to account, not just on paper, but in reality.

Judicial Review allows individuals and organisations the chance to challenge poor decisions by public officials, ensuring they are accountable through independent scrutiny by the courts. If the risk of JR is dissipated, there is a risk that public authorities will not continually check and reassure themselves that decision making is lawful.

I have lost count of the number of letters I have written to public authorities (or even just brief emails) setting out a concern with a particular decision they have made impacting on a vulnerable adults life. The majority of these result in the legal team looking at the case and advising their client department to act lawfully and thus helping stop a misuse or abuse of power.

This type of resolution is not uncommon within the realms of public law and one of the reasons ‘legal help’ is so effective. But there are times when the matter doesn’t come under the radar of the busy legal team until much later in the process (at letter before action stage) or, sadly, times when the authority legal team will be supportive of the decision making public authority and rather than advising their client public authority client to change the decision prior to the matter reaching permission stage, that lawyer will push on and ignore all attempts to settle. I am aware that they will often resist JR claims up to the permission stage. If the proposal goes through, it gives even more incentive to the public authority to resist up to the permission stage because they may not get challenged and could get away with making that particular decision. The public authority has nothing to lose – they get their legal fees paid regardless and there will be an inequality of arms if the matter does go to court, because the authority knows that it can re-coup its costs of paying expensive counsel.

Payment is found from the same public purse that funds the providers who are trying desperately to manage the expectations of an often vulnerable and scared individual, who is being presented with an extremely complex issue to provide instructions upon. I say that they are often vulnerable because they are the people who are touched by public authorities most commonly, because they reach out to be protected by the state as they have no where else to turn.

Judicial Review of public law breaches is a good way of pursuing and challenging alleged breaches of European Convention Rights. Forcing more providers away from doing this work will reduce the ability for individuals to effectively access an independent court, which is one of the most fundamental of human rights.

With fewer lawyers taking the risk of pursuing cases on behalf of clients, there will be less choice and more and more litigants in person will be forced through the court system, the High Court, no less. There may be an increase in vexatious litigants and court staff will be bombarded with potentially inadmissible evidence and difficulties in explaining complex procedure to non lawyers. Members of the legal profession undergo training to be able to provide advice and explain complex issues to clients in a way in which they will understand them. Court staff are not allowed to give advice. Increased Court and Judge time will be spent in guiding litigants in person through the system.

The proposals will not stop Judicial Review cases being brought – it will just shift the real onus of managing cases from legally qualified representatives to the Judges and court staff. Litigants in person will still bring cases, especially prisoners who have all the time in the world to bring Judicial Review proceedings regardless of merit. At least with the current system there is a filter. The provider does already risk a degree of non payment on assessment of his bill already and therefore is attuned to justifying work done and cases they intend to bring.

To put a greater financial risk on to the provider is to risk creating a system where the solicitor becomes Judge and the public authority is not held to account. The current system is difficult enough and to place even more pressure on a lawyer (who is already facing severe pressures from simply being a lawyer, let alone a legal aid lawyer) will undermine the rule of law.

In terms of the statistics provided in the consultation paper, I have considered the response to the consultation from Housing Law Practitioners Association and agree with its analysis of the numbers.