Posts in the ‘Mental Capacity’ Category

Autonomy and the empowerment of the individual

Posted on: October 14th, 2014 by Jess Flanagan

This is a blog by my colleague, Joanna Burton, all about our Mental Capacity Conference on Friday 17 October at Clarke Willmott.

I am really looking forward to this event, and it marks a real step forward for our team as being experts in welfare cases in the Court of Protection. I have always been keen on sharing information and educating those who need to be aware of the Mental Capacity Act, and this event takes it one step further as we have leading experts in the world of capacity talking to us about how far we have come in the 7 years since it came into force.

Over to Jo….

On 17 October 2014 Clarke Willmott is hosting a one day conference ‘The Mental Capacity Act 2005: Promoting Autonomy and Empowerment’. Ahead of the conference Joanna Burton looks at the way legislation has evolved over the past forty years, placing individuals at the centre of the procedures that affect them.

Empowerment of the vulnerable individual lies at the heart of our work, whether that individual has capacity or is unable to make decisions relevant to his or her welfare, and whether we are acting on behalf of the vulnerable person, or for a family member, friend, carer or advocate. Professor Hugh Rickards will talk to us about his clinical experience of assessing capacity at the conference.

Over the last twenty five years there has been a gradual but consistent development in health and social welfare legislation putting empowerment of the individual at its core. The Children Act 1989 was, perhaps, the first step in this process, making the ‘welfare of the child paramount’; it is the right of the child to have contact with both parents not the right of the parents to have contact with their child.

The protection of human rights has been an important development and since the European Convention on Human Rights became enshrined into the law of England and Wales, Scotland and Northern Ireland in 1998, all individuals in the United Kingdom have their rights under that convention protected.

Under Article 8 the individual is protected from arbitrary or unnecessary interference from the state in his or her private and family life, and it can also provide leverage upon the state to provide services to ensure that P’s rights under Article 8 are not breached.

In the recent case of P (Appellant) v Cheshire West and Chester and another and P and Q v Surrey County Council [2014] UKSC 19 Lady Hale spoke of the ‘universal character’ of human rights and underlined that ‘people with disabilities have the same human rights as the rest of the human race’ She spoke further of the State’s ‘duty to make reasonable accommodation to cater for the special needs of those with disabilities’. Simon Burrows will be talking about this case, and its implications six months on.

Throughout the 1990s various pieces of anti-discriminatory legislation were passed, culminating in the Equality Act 2010. At the core of the Equality Act 2010 is the individual’s right to be treated equally and have equal opportunities irrespective of age, gender, disability, race, colour, creed or sexual orientation. Obligations lie with the employer, or the provider of services and ultimately the state to ensure that the principle is respected and acted upon.

In October 2007 the Mental Capacity Act 2005 came into force. Fundamentally the MCA provides the legislative framework to ensure that an individual who lacks capacity to make decisions is treated with the same autonomy and respect given to adults with capacity. Any actions or decisions made on behalf of P must be in P’s best interests. The Act promotes and, in certain circumstances, makes it a duty for an Independent Mental Capacity Advocate, an IMCA, to be appointed to be the voice of P. I would like to see an IMCA appointed for P when any major decision is being made, irrespective of whether other family members are willing to speak on P’s behalf. In my view an IMCA is the acknowledgement of the autonomy of P and should be a fundamental part of P’s armoury. Jakki Cowley and Sue Lee from ‘Empowerment Matters’ will be talking about their work as IMCA’s and their important research which has recently led to the publication of their ‘Guidance for Assessing Supporting and Empowering Specific Decision making’.

The Court has been at the forefront of empowering P. Jurisprudence has set the bar low for assessing capacity. Our key-note speaker, Mr Justice Baker has discussed (in CC and KK and STCC [2012] EWCOP 2136) maximising the entitlement of the individual to make his or her own decisions, however unwise they may be. Best interest decisions made by the court have tended to resist the risk averse decisions that might be made by a local authority and have enabled P to go on holiday or return home when risks may appear to others to be quite high; the case of Manuela Sykes which I discussed in May is a prime example. Mr Justice Bakerwill be our key note speaker at the conference on 17 October 2014 giving his thoughts on cases that have been before him recently.

The Court of Protection rules and procedures also place P at the centre of the case, requiring that P is served with any application to the court and that those interested in his or her welfare are also notified. In my view, however, it is an anomaly that P does not have to be joined as a party to Court of Protection proceedings. P is almost always joined in ss15,16 and s21A MCA 2005 health and welfare and deprivation of liberty proceedings, so for P to have potentially no part in proceedings where life changing decisions are being made for them, or where their liberty is at stake, this is in my view a breach of Article 5(4), Article 6 and potentially Article 8. It is our understanding that clarity on this issue is being sought as permission has been requested to appeal Sir James Munby’s recent decision in Re X and others (deprivation of liberty) [2014] EWCOP25 that P may not have to be joined in deprivation of liberty proceedings that do not fall under s21A MCA 2005. Watch this space.

Although I fully acknowledge the logistical and financial difficulties in P’s participation and representation in proceedings, in my view it is P’s fundamental right under Article 6 and rather than being brushed over, this needs to be addressed. If P lacks the capacity to litigate (and most P’s in Court of Protection proceedings do) he or she will need a litigation friend. There is a real shortage of people willing to act as litigation friend to P and the pressure on the Official Solicitor (OS) as litigation friend of last resort is overwhelming. Clarke Willmott has been in the forefront of encouraging and supporting advocates and RPRs to be litigation friends to P Sophia Roper from the Office of the OS will be speaking at our conference and we will no doubt cover this problem in discussions. Perhaps, as with the Court of Protection Panel Deputies, the court could consider setting up a panel of Litigation Friends.

The financial issue of P’s participation in the proceedings must also be considered. Court of Protection proceedings are very costly and few fall below £10,000 by their conclusion. Non means tested legal aid is only available to P in s21A MCA proceedings which challenge a DOLS Standard authorisation. Legal Aid for all other proceedings is means tested. We often act for individuals who have savings of less than £15,000, but more than the £8,000 legal aid limit. Until their savings have been whittled down in legal costs to below £8,000 we cannot apply for legal aid, and that is without taking into account a capital contribution they will have to pay if they have savings of more than £3,000. Non means tested legal aid is available for a child in child care proceedings, and we feel quite strongly that it should be available for P who lacks the capacity to litigate so that they can be properly legally represented in all proceedings concerning their life and liberty in the Court of Protection.

The Care Act 2014 comes into force in April 2015, placing “wellbeing” at its core and setting out that a local authority must have regard to “…the importance of beginning with the assumption that the individual is best placed to judge the individual’s wellbeing”. In the words of Martin Luther King ‘ It may be true that the law cannot change the heart but it can restrain the heartless. It may be true that the law cannot make a man love me but it can keep him from lynching me and I think that is pretty important, also’.

Laws and jurisprudence may not on their own change hearts but they can change practice. To properly empower our most vulnerable individuals we need to use all the resources available. Notwithstanding the austerity measures the legislation and our courts are clear that the rights of the individual are at the core of any process.

6 months of a new ‘Deprivation of Liberty’: March – August 2014

Posted on: August 11th, 2014 by Jess Flanagan

I’ve written a lot on my team’s blog about the game changing Supreme Court judgment of what is known to all of us Court of Protection ‘geeks’ as ‘Cheshire West.’

I have been pretty silent on this blog, as my energies went on ensuring that our Clarke Willmott blog readers were kept up to date. Today, I have had the honour of having my piece hosted on the Family Law website, and thought I would take this opportunity to summarise my pieces over the past 6 months following the judgment in March. More for me to have a record of it all than for anything else. It has been an exiting, and increasingly busy 6 months and there is no certainty as to how it is all going to pan out.

I speak almost daily to IMCAs and RPRs who have seen referrals increase unspeakably; to Local Authority lawyers who are wondering how they are best to advise their client Adult Services departments to deal with backlogs of assessments for Standard Authorisations; and to care home managers who are just about realising the implications of it all (and hearing about others who still haven’t got a clue!. The press is now starting to get wind of the real cost involved and with the Supreme Court judgment resulting in most adults who lack capacity to consent to their care arrangements requiring their placements to be authorised, and it being abundantly clear that any deprivation of liberty in a supported living or independent placement which is paid for, or arranged by the state in some ‘non negligible’ way, must be authorised, this simple change in legal test has some really good but really frightening implications for Adult Services in England & Wales.

My colleague Joanna Burton introduced the judgment in her summary piece in March and following a flippant comment I made on twitter resulted in Simon Burrows from Kings Chambers coming along to our Bristol office in April to set out the initial implications of the judgment to a full house of health and social care professionals, private client lawyers, RPRs and IMCAs. I set out my review of that talk in another piece on the Clarke Willmott blog.

Two months after the judgment I was invariably talking a lot more about DOLS and what the statutory safeguards were there for. I was spending (and still do spend) a lot of time reminding care home staff, the individual who is deprived of their liberty and their families that a Standard Authorisation is NOT a DOLS Order and it is not something that can be ‘lifted’. It is a tough thing to explain to someone who feels detained, and to all intents and purposes is detained, but is actually deprived of their liberty because of the arrangements required to keep them safe. So I wrote about DOLS being safeguards, not imprisonment in order to try and spread the word…

Those first three months were so exciting that DOLS was the feature of our second edition of the Court of Protection and Health & Social Care Newsletter and there is a summary of what the House of Lords Committee’s report on the Mental Capacity Act 2005 in there somewhere.

I haven’t blogged about the Government’s response to the House of Lord’s Select Committee report because it was really quite sad. I think the most important thing for us to take away from it is that the statutory scheme isn’t going to change any time soon, and non means tested legal aid (that P is eligible for when challenging a Standard Authorisation in the Court of Protection)is not going to be available when P requires representation in the Court of Protection when authorisation is being sought for Deprivation of Liberty in supported, or independent living environments. I blogged about what I might like to ask the Government as a result. The story behind this was a senior partner in my firm was invited to an audience with the Minister of Courts and Legal Aid and asked if I had any questions. I did and I set this out for him to take with him. The minister cancelled. Perhaps he knew he was likely to face some really tricky questions…

So, this brings me nicely on to Thursday’s judgment and my piece published on Family Law today. Sir James Munby has produced guidance for Local Authorities to follow when making applications to the Court of Protection to authorise a DOL in placements other than care homes and hospitals. He will deal with other issues and provide more detail in due course, but this is a start.

Happy reading.

I am keeping a close eye on how all of this pans out in reality and especially in respect of how local advocates cope with the pressure and how the safeguards really do safeguard people, not imprison. So, if anyone has any experiences they want to share, please don’t hesitate to get in touch to chat it through.

Legal Aid for Community Care

Posted on: August 10th, 2014 by Jess Flanagan

I remain really quite pleased that Clarke Willmott was successfully awarded a contract to provide legally aided Community Care advice in Southampton and Bristol. In one week I have been able to help two new clients in a way I wouldn’t have been able to before we had this contract.

At the sake of sounding like a broken record, I thought I would repeat what I said about legal aid on our Elderly Care and Court of Protection blog, as I am so proud of the work we can now do to help those who really need it:

Providing Legal Aid for Community Care matters

“From 1 August 2014, Clarke Willmott will be in a position to offer our clients legally aided advice in respect of Community Care matters. From challenging Social Services and Continuing Healthcare assessments, to advising on applications for Judicial Review and in the Court of Protection, our team may be able to assist you. Until now, we have only been able to provide advice when a case is already in the Court of Protection, or if a hearing in the Court of Protection will be required.

Our contract with the Legal Aid Agency will enable us to advise eligible individuals and provide support for them at best interests meetings. These may take place way before a court hearing is necessary and can provide assistance in setting out views and evidence, to try to avoid the need for any court application.

Jess Flanagan, an Associate in the Clarke Willmott Court of Protection team says: ‘Everyone in the team is delighted that we can now provide legally aided support to the public, especially at a time when the austerity measures continue to bite in the Social Care world. With access to legal advice when an issue arises, as opposed to when the case is before the court, many clients will be able to avoid the lengthy and sometimes exhausting court process.’

To be eligible for legal aid an individual must have gross income of less that £2657, disposable income of less than £733 per month (combined with your partner if you are living with them) and capital of less than £8,000. It is a complicated and rigorous assessment, so if you are unsure, please call Jess Flanagan on 0845 209 1160.”

In the midst of all the challenges faced by legal aid practitioners and those they try so hard to support, I am so proud of what additional support we can now offer.

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.