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Risk-taking and the Court of Protection

Posted on January 18, 2016 by suesspiciousminds

 

I’m always interested in Court of Protection cases that drill down into the key principles of autonomy v safeguarding – the dilemma between whether someone should be free to make decisions that an onlooker would consider to be bad or dangerous, or whether the freedom to make such mistakes is how we learn and grow. Of course, in law, the principle consideration is whether the person has capacity to make the decision – which does not necessarily mean that they understand every nuance of it and have weighed it up like Mr Spock – in daily life, we all make decisions without necessarily giving each and every one much thought.

This case also has important things to tell us about just how rotten a society we live in where someone with autism can be exploited on television for a cheap laugh because they don’t have a great singing voice, and even worse that there are sick men in our society who see someone fragile on television or social media and try to exploit them sexually.

Re Z and Others 2016

http://www.bailii.org/ew/cases/EWCOP/2016/4.html

 

Z is a 20 year old woman who is autistic. There was a time when she was very focussed on becoming a celebrity and wanted to become a singer. As a result, she appeared on the auditions for a television talent show (the show is not named, but readers are not ignorant and can probably narrow it down to one of two or three).

 

 

  • Z attended mainstream school, and told me (I am not sure how reliably) that she had obtained a number of GCSEs. She reported that she had many friends at school, although contemporaneous records in fact show her to have been rather isolated and a loner. After school she went on to train in the field of beauty therapy at a local education college, but her passion has always been, and is, music; Z keenly wishes to be a singer. In 2012, Z appeared in a televised talent show; it was not a success. Sadly she now regards the experience as humiliating and she is embarrassed by her performance. She dropped out of college and became depressed. A referral was made to CAMHS. She started to display risky behaviours; her performance was available to view on the internet, and she was deluged with contacts through web-based social media, mainly from men. She met with some of those who contacted her, some of whom allegedly abused or exploited her. She became sexually disinhibited, and some of her sexual experiences were believed to be non-consensual. Over a period of time, Z received support from SECOS (Sexually Exploited Children’s Outreach Services); although she appeared to show some insight into the risks of her behaviours, it became apparent that she did not always apply this insight or learning into practice, and continued to place herself at risk. The last evidence of this kind of risky behaviour with men now goes back to 2013 or (at the latest) 2014.
  • In 2013, Z was assessed by a clinical psychologist who concluded that she did not have a diagnosis of learning disability, and she retained capacity to make decisions about social contacts.
  • Like many young people, Z occupies her time on different forms of social media. Unlike many, at one time she removed all the privacy settings on her account, and was alleged to post up provocative material about herself. It was said (though she denied it, and I make no finding about it) that she had at one time sent naked photos of herself over the internet for money. For a time, though in my judgment to a much lesser degree now, she craved publicity for her singing, and was focused on becoming a celebrity.

 

 

  • In the January 2015 interview, it appears that Z demonstrated a good degree of insight into the debacle of her talent show audition, indicating that she would decline further opportunities for a repeat for the time being (“not at the moment, I don’t think I’m ready”). She showed a realistic, if not cynical, view of why men had shown such interest in her following her television appearance (“it’s obvious, men wanted sex with me…”). She denied inappropriate use of social media (“I have kept away from social media … I don’t want to go back to square one”), showing an understanding that people contacting her through social media “might be a risk to me”.
  • Dr. Rippon considered that Z showed interest in fame and celebrity status to an “unusual” degree. Dr. Rippon considered that Z had misinterpreted the talent show judges’ comments, and had formed a misguided appreciation of her impressive progression through the audition stages (as a possible object of ridicule rather than through talent). Dr. Rippon was concerned about Z’s “difficulty in processing information particularly that of an abstract nature”, and was of the view that

 

“… during the course of the proceedings, [Z] would struggle to be able to understand the evidence, either in written or verbal form, that is given in Court, process this information and use it to instruct her counsel appropriately. I also do not believe that [Z] would be unable (sic.) to think through the consequences of the instructions which she is providing to her solicitor or understand the risks to herself of any instructions given”.

 

and again later, the Judge describing Z’s presentation in Court and in her evidenc

 

She showed insight into her dismal talent show audition (“it was overwhelming … my nerves seemed to overtake my vocals… it was vocally bad”). She discussed the way in which she had been exploited by men who had contacted her, saying that there was a “bad light” around her at that time

 

The issue for the Court in this case was whether there should be a declaration as to Z’s capacity to

 

i) Choose her residence;

ii) Make contacts with others;

iii) Deal with her care;

iv) Litigate in these proceedings.

 

It was clear that Z had capacity to consent to sexual intercourse – she understood the mechanics of the activity, understood that pregnancy could result and how to mitigate against that and understood the risks of sexually transmitted diseases and how to protect herself.

We have dealt with this issue before as to whether a person who has capacity to consent to sex has the capacity to put him or herself in the position with a potential partner who might pose a risk to them of taking that risk.  Most dramatically in this piece

 

https://suesspiciousminds.com/2014/04/30/lets-find-you-a-nice-young-man/

 

where the Court of Protection were trying to put in place a regime for a man who wanted to have homosexual sex and had capacity to consent to it, but no real understanding of how to weigh up a partner as to whether they would meet his needs or treat him violently and badly.  Re A Local Authority v TZ no 2 2014

http://www.bailii.org/ew/cases/EWHC/COP/2014/973.html

(and I personally think that the CoP got themselves in a tremendous pickle in that case, with good intentions, but ending up with a regime that was utterly unworkable for a real person)

 

 

In this case, the Judge had to weigh up whether Z had capacity in relation to those issues, the dominant one being in making decisions about friendships and relationships

 

  • The Local Authority was perfectly justified in initiating proceedings in June 2014, at what was a very low point in Z’s life when her self-destructive behaviour was posing a significant threat to her well-being, and her capacity to process key decisions was significantly in question. I am inclined to the view (this is not, for obvious reasons, a finding) that she probably did lack capacity to make decisions on the matters under review at that time. However, having reviewed the contemporaneous material with care, and on the evidence available to the court at this hearing, I have reached the conclusion, on a fine balance, that the local authority has not rebutted the presumption of Z’s capacity in relation to the matters under review in this case, at the present time.
  • There is no dispute in this case that Z does suffer from an “impairment of … the mind” within the meaning of the MCA 2005, namely her autistic spectrum disorder, with a secondary component being her learning difficulty. The issue as to her capacity focuses in this case on the functional element of the test. At the heart of the dispute is the assessment of Z’s ability to ‘use or weigh’ information (section 3(1)(c)) about risk to herself, and her ability to keep herself safe in independent living, and in her social contacts. Only if I were to find that Z is “unable” (section 3) (and I emphasise ‘inability’ rather than ‘impairment’ – see again [15] above) to process information relevant to risk (in the ways defined in section 3(1)) could I find her incapacitous in relation to the matters in dispute. As the wording of the statute makes clear, the point in time at which I must capacity is to be tested is now (i.e. “at the material time”).
  • In order to determine Z’s capacity, it is not necessary for her to use or weigh every detail of the respective options available, merely the salient factors (see CC v KK and STCC: [12] above). In this case, it is apparent to me that Z does indeed understand the essential implications of living at home or living independently; as indicated above, Z acknowledged the benefit of having some “guidance” on living independently. She recognised that she would reasonably expect to be allocated a flat, and was able to distinguish between the ‘good’ areas and ‘bad’ areas of town in which to live. I am (perhaps unlike Dr. Rippon) sufficiently persuaded that Z recognises at a material level the benefit of third party support in the event that she is to live on her own. She showed insight into the possible loneliness of living independently; she felt that one of the downsides of leaving home is that she will lose the benefit of having her mother’s “shoulder to cry on” when things are getting her down. She has an outline knowledge of her financial circumstances, and currently appears able to perform basic budgeting. She seems aware that her life is easy now, as all the bills are paid, and she is cared for; I felt that she recognised that she would be giving these comforts up if she were to move. Overall, I am satisfied that Z is able to ‘use or weigh’ the evidence relevant to the matters set out by Theis J in LBX v K and L (see above) at [14].
  • In relation to social contacts, Z needs to be able to weigh up the risks of associating with strangers, particularly those whom she meets through the internet – something which she says that she has indeed learned to deal with through experience. Dr. Rippon acknowledged that, other than with A, there was no evidence of Z making contacts through social media which were of any concern. The fact that she has rejected any ongoing support or care from Dimensions is not evidence in itself that she lacks the capacity to decide on its usefulness. She has articulated her reasons: she does not feel that she currently needs the package, and she feels that the workers are constantly talking about the past not the future, and they ‘talk down’ to her.
  • Dr. Rippon expressed the view in November 2014 (see [29] above), that with time and increased maturity, Z’s ability accurately to assess risk may improve; it is my view that the evidence now available (December 2015) indicates that time and increased maturity, and the benefit of learning from experience, have indeed had that effect. There is no real issue but that 2015 has been a period of relative stability for Z; she has engaged (to a limited extent at least) with the support which is provided for her through Dimensions, and even within the limits of that work, she has impressed the workers with her display of increased maturity. In 2014, Dr. Rippon advised that it would be sensible to re-assess Z’s capacity in “two to three years time”, plainly contemplating a potential future change in capacity, but timescales of this kind are notoriously difficult to gauge, and in my view the evidence appears to have revealed change rather sooner.
  • While it may have been that Z showed an “unusual” degree of interest in fame and celebrity in the past (to some extent in 2014, when first interviewed by Dr. Rippon), and a limited appreciation of the quality of her talent-show performance, I do not find that she continues to hold or display these views. More recent discussions (including her evidence in court) reveal a good degree of awareness of the deficiencies of her performance, and a more realistic appraisal of her quest for fame. At the hearing before me, she impressed as someone who was more than just aware that “people should treat you with respect”, apparently mindful that people had not done so in the past. Dr. Rippon expressed scepticism in her 2014 report about Z’s ability to understand the evidence which was to be given in Court, process this information and use it to instruct her counsel appropriately; this scepticism was I believe misplaced. Z showed a good level of attention to the evidence, gave instructions to her solicitor and counsel, and – even on Dr. Rippon’s own view – answered questions in evidence better than she had during the three previous interviews.
  • Dr. Rippon entirely fairly observed that young adults are generally able to learn from negative experiences, and use this to support their future decision making. She felt that Z had failed to do this; I do not agree. Z’s behaviour in 2013 and 2014 was, I am prepared to accept for present purposes, intensely destructive; I accept Z’s own assessment that she has at least to some extent “learned how to make decisions”. I accept that she has changed, and I was impressed with her own assessment that “… everything has happened for a reason. It made me stronger and made me more mature” (see [30] above).
  • Dr. Rippon indicated that she would be looking for Z to develop and display insight, that she is not putting herself in risky situations and is understanding of other people’s motives; the trip to Brighton to stay with A was risky to some extent, but not more than usually risky for a young person who is in love, and who has met the object of her affections a number of times on home territory before heading off to see her at her home. Moreover, when the Brighton trip became intolerable, she left.

 

 

 

The Judge here recognised that capacity can fluctuate, and that there had been a time when Z had lacked capacity to keep herself safe but had learned from those experiences and now had the capacity to make decisions for herself about who she wanted to spend time with. Will she make the right decision every time? Probably no more than you or I have always made the right decision about friendships or relationships. Getting things wrong is part of life. If you never get these things wrong, you never have the life-enriching experience of getting them right and finding a true friend or a soul-mate or both.  It isn’t for the Court to worry about outcome or to wrap a person in forensic cotton wool – if they have the capacity to make a decision, then they are free to make it, even if you think they are likely to make some bad ones along the way.

 

 

  • As indicated at the outset of this judgment, some risk-taking in adolescents and young adults can be perfectly healthy, such as in sporting activities, or artistic and creative pursuits, travelling, making new friends (including internet dating and friendship groups), or entering competitions. Healthy risk-taking helps young people to learn. Some adolescent risk-taking can be unhealthy and dangerous – casual sexual relationships, unprotected sex, driving too fast on the roads, excessive consumption of alcohol, consumption of non-prescribed drugs, dealing with anger and confrontation. These forms of risk-taking are inherently unwise and unsafe. In dealing with risk issues in relation to a young person in the context of assessment under the MCA 2005, it is necessary to separate out as far as is possible the evidence which indicates that second category of risk taking (unhealthy, dangerous, unwise) from that which reveals or may reveal a lack of capacity. As Lewison LJ said in PC v City of York (above) “adult autonomy” includes the freedom “to make unwise decisions, provided that they have the capacity to decide” (see [64]).
  • Lewison LJ also referred in the same case (PC v City of York) to the need for a “solid evidential foundation” on which the judge’s decision as to capacity can rest. In this case, as I have earlier mentioned, Mr O’Brien invites me to ‘infer’ a continued existence of risk, and Z’s inability to ‘use or weigh’ information relevant to such risk. An inference can barely be described as an evidential foundation, let alone a ‘solid’ one.
  • I have not found this a particularly easy decision, in the main, because more than a year had passed between the filing of the principal evidence and the hearing. Moreover, I am conscious that I am differing in my conclusion from Dr. Rippon, who in many ways was an impressive and helpful witness and who, as I have indicated above (see [52]) also found the case “incredibly difficult”. In differing from Dr. Rippon, I remind myself that her role and mine are distinct: the expert advises and the court decides. While the opinion of an independently instructed expert in a case such as this is “likely to be of very considerable importance” (Baker J in PH v A Local Authority [2011] EWHC 1704 (COP)), as indeed I find her evidence to be, the decision as to capacity is a judgment for the court (see Re SB [2013] EWHC 1417 (COP)), weighing the expert evidence against my findings on the other evidence. I consider that Dr. Rippon may well have been right in her assessment as to Z’s capacity over a year ago (November 2014), but in my judgment, the passage of time and Z’s greater maturity, coupled with some support from Dimensions and enhanced self-esteem through her music, Z appears to have matured, learned from her mistakes, and developed sufficiently in her capacity to make relevant decisions, and keep herself safe. While the Brighton trip illustrates some unwise decision-making, in fact its greater significance lies in its revelation to me (in contrast to Dr. Rippon) that Z had developed sufficient ability to ‘use or weigh’ information which indicated risk, and insight into the consequences of her choices. In the way she described the visit when giving her unsworn evidence, it is apparent that she was alert throughout the trip to the potential hazards (i.e. the events which made her uncomfortable) and when the relationship with A appeared to be deteriorating badly, she took the appropriate step, entirely independently, of returning home.
  • I have conscientiously cautioned myself against considering outcome when determining Z’s functional ability; I repeat this point, as I am conscious that Z is a vulnerable young person who deserves to have, and should be persuaded to receive, support from adult social services going forward. It is tempting for the court to take a paternalistic, perhaps overly risk-averse, approach to Z’s future; but this would be unprincipled and wrong. I am satisfied in any event that Z currently has a reasonably fulfilling life, which enjoys; she has a loving relationship with her mother who currently cares for her well and who, I hope, could be encouraged to do so for a while longer while Z grows further in maturity and confidence.
  • That is my judgment.

 

If you are wondering, this decision and Re TZ are not in conflict, because the Judge here was satisfied that Z had capacity to make the decisions, whereas in Re TZ the Court was satisfied that TZ did not have the capacity to assess risk for himself  (though had capacity to consent to sex) and thus tried to construct a workable framework in his best interests that would allow him to express his sexuality and desire whilst keeping him safe.  Whether you think that they did so successfully is a matter of opinion….

 

 

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Capacity to consent to sex – do you want a Hanc or a Hunc?

Posted on December 22, 2014 by suesspiciousminds

Mostyn J has just given a ruling in the Court of Protection  – London Borough of Tower Hamlets and TB 2014

http://www.bailii.org/ew/cases/EWCOP/2014/53.html

Within this case, Mostyn does two significant things.

 

The first is that he refines his own test for capacity to consent to sexual intercourse, and is much persuaded by Hedley J’s formulation.

Regular readers will be aware that the Court of Protection’s usual approach to capacity to consent to sexual intercourse is to look at three issues :-

 

(a) Understanding of the mechanics

(b) Understanding of the health risks

(c) Understanding of the risk of pregnancy.

 

Mostyn J says that he has changed his mind as to whether that is the right test

Although I am not going so far as figuratively to hold my hand in the flames like Cranmer I have had cause to reconsider my previous opinion.

 

Before Mostyn J, legal argument took place that bears some resemblance to that discussion in Gremlins 2 about whether a Mogwai is fed after midnight if he is on a plane crossing the international date line…

  1. I deal first with the pregnancy element. In A Local Authority v TZ [2013] EWCOP 2322 Baker J concluded at para 31 that in the case of a person clearly established to be homosexual it is ordinarily unnecessary to establish that he or she has an understanding or awareness that sexual activity between a man and a woman may result in pregnancy. In this case Mr McKendrick argues that because TB has had an IUD inserted she is in an equivalent position. The argument became increasingly far-fetched. We discussed a man who has had a vasectomy. A woman who is beyond childbearing. A man wearing a condom. Mr McGuire QC rightly captured the unreality of this debate in his final submissions when he said:

    “But following this link produces nonsensical results. What if a woman happens to have fertility issues? Or is already pregnant? Or is beyond childbearing age? Would knowledge of this link be irrelevant for a man? “

 

And as a result, Mostyn J decided that it would be best for the third part of the test to simply form part of the second part (health issues)

I have come to the conclusion that the third element of risk of pregnancy should not be a separate one. Rather it should be subsumed into the second which should simply be expressed as: “that there are health risks involved”. All sexual activity has some health risks. The most obvious ones are pregnancy or STDs. But over-robust sexual activity can cause wounding or bruising, external or internal. Any sexual activity can cause psychological harm. A simple criterion as I have suggested would resolve the dilemma I expressed in para 43 of D Borough Council v AB [2011] EWCOP 101, which on reflection came perilously close to introducing a quoad hanc dimension when I had been at pains to repudiate that.

 

If you are wondering what quoad hanc means   [i.e you are not my regular commentor Andrew, or David Burrows] it raises its head in this judgment here, where Mostyn J raises a complaint that a formulation is unnecessarily overcomplicated and goes on to explain it in Latin.   (I am biting my tongue here)

The first thing that the cases have decided is that the test for capacity to consent to sexual relationships is, to use rather laboured language, general and issue specific, rather than person or event specific: see IM v LM [2014] EWCA Civ 37 at para 79. In canonical language the incapacity must be quoad hunc not quoad hanc, in contrast to the position under section 12(a) Matrimonial Causes Act 1973 where the incapacity to consummate may be on either basis[2].

Quoad Hanc is where someone is not able to have sex with a particular individual, and Quoad Hunc is where they are not able to have sex with anyone.  i.e the difference between not being able to have sex with Hank (perhaps because he has body odour) and not being able to have sex even with a hunk (because you just can’t have sex with anyone)

 

[I am sure Andrew and David will be able to put it better than I have]

Having digressed a bit, is the capacity to consent to sexual intercourse test now just

(a) Understanding of the mechanics, and

(b) Understanding of the health risks  ?

 

Well, not so fast there Hank.

Mostyn J reminds himself and us that he had previously been asked to consider whether the understanding of the ability to say “yes” or “no” to sex should be a factor, and had rejected this. He has now changed his mind, and gives credit to Hedley J in relation to this

  1. I now turn to the question whether the relevant information should include as a separate element an awareness that lawful sex requires the consent of all parties and that that consent can be withdrawn at any time. In my previous decision of D Borough Council v AB I accepted at para 35 that I should not conflate the capacity to consent to sex and the exercise of that capacity. Therefore I rejected Dr Hall’s third head of capacity.
  2. In this case the OS agrees that being able to say yes or no to sexual relations is part of the weighing process under section 3(1)(c), and that this is made explicit by the terms of section 3(4)(a). Notwithstanding this concession Ms Greaney disputes that it should be an independent head of awareness because to do so would conflate capacity with the necessary exercise of free will. She argues that consent is the product of capacity and the exercise of free will.
  3. However, in A Local Authority v H [2012] EWHC 49 (COP) Hedley J with his customary erudition, sensitivity, lucidity and eloquence convincingly persuades me that I was wrong then, and that the OS is wrong now. At para 25 he said this:

    “And so one turns to the emotional component. It remains in my view an important, some might argue the most important, component; certainly it is the source of the greatest damage when sexual relations are abused. The act of intercourse is often understood as having an element of self-giving qualitatively different from any other human contact. Nevertheless, the challenge remains: can it be articulated into a workable test? Again I have thought long and hard about this and acknowledge the difficulty inherent in the task. In my judgment one can do no more than this: does the person whose capacity is in question understand that they do have a choice and that they can refuse? That seems to me an important aspect of capacity and is as far as it is really possible to go over and above an understanding of the physical component. “

  4. In my judgment this simply cannot be gainsaid. It was accepted by everyone in this case that sex between humans must involve more than mere animalistic coupling. It is psychologically a big deal, to use the vernacular. Hedley J’s formulation captures perfectly why and how that extra ingredient should be defined.
  5. Therefore I conclude that when determining the question of sexual capacity under the MCA the relevant information as referred to in section 3(1)(a) comprises an awareness of the following elements on the part of P:

    i) the mechanics of the act; and

    ii) that there are health risks involved; and

    iii) that he or she has a choice and can refuse.

    I would add that the excellent witness Dr Joyce was of the firm view that this third element was very important. I would also suggest, with all due humility, that the test as formulated by me has the merit of simplicity.

I have to say that for my part, I prefer this revised three part test.  I did have to quickly check whether it clashes with the Court of Appeal in Re IM v LM 2014 and I don’t believe that it does. So this is now the new test to be used.

 

[In the instant case, the woman understood the mechanics, understood that she enjoyed sex but did not understand that she could say no. Her husband for religious reasons believed that it was her duty to have sex with him on request – her general level of functioning was that of an 8 year old. Mostyn J held that she did not have capacity to consent to sex on the basis that she had no understanding of her ability to say no]

 

The second issue of import in the judgment was that there was a Deprivation of Liberty Element – this woman wanted to go back to her husband and was being prevented from doing so. In part because he intended to have sex with her about twice a week and she lacked capacity to consent.

That allowed Mostyn J to revisit his decision in Rotherham. And if you think that he has softened on that, as he has changed his mind on the capacity test, you are wrong.

  1. My decision of Rochdale Metropolitan Borough Council v KW [2014] EWCOP 45 has aroused a certain amount of criticism. For example, Sarah Lambert, the head of policy for the National Autistic Society has stated that:

    “This decision appears to directly contravene the Supreme Court’s ruling that liberty must mean the same for all, regardless of disability.

    Any move to revisit or unpick this definition would be a huge step back. NAS is deeply concerned that this decision will create avoidable confusion and uncertainty among health and social care professionals, potentially undermining essential protections for people with autism.”

  2. The appeal in Rochdale Metropolitan Borough Council v KW will be heard by the Court of Appeal on 4 or 5 February 2015.
  3. If nothing else, I think it is important that I meet the criticism that I have sought to encroach on essential protections for disabled people, and amplify my reasoning.
  4. In para 17 of my decision I said this:

    “It is clear that the driving theme of the majority opinions is a denunciation of any form of discrimination against the disabled. With that sentiment I naturally wholeheartedly agree. Discrimination is found where like cases are not treated alike. However, when making Lord Kerr’s comparison you do not have two like cases. You are comparing, on the one hand, a case where an 18 year old does not need protection and, on the other, a case where the 18 year old does. They are fundamentally dissimilar. The dissimilarity justifies differential treatment in the nature of protective measures. For me, it is simply impossible to see how such protective measures can linguistically be characterised as a “deprivation of liberty”. The protected person is, as Mill says, merely “in a state to require being taken care of by others, [and] must be protected against their own actions as well as against external injury”. And nothing more than that. In fact it seems to me to be an implementation of the right to security found in Article 5. “

  5. The suggestion that “the dissimilarity justifies differential treatment in the nature of protective measures” was not a personal idiosyncrasy. It is justified by high authority

Mostyn J goes on to set out those authorities, but I will pass over those – they are available in the judgment if you wish to see them.

57…The state is obliged to secure the human dignity of the disabled by recognising that “their situation is significantly different from that of the able-bodied”. Thus measures should be taken “to ameliorate and compensate for [those] disabilities.”

  1. But to characterise those measures as state detention is to my mind unreal. I referred to the historical context in which Article 5 of the ECHR 1950 came to be formulated. It followed the Universal Declaration of Human Rights of 10 December 1948 which in its preamble referred to “the disregard and contempt for human rights [which] have resulted in barbarous acts which have outraged the conscience of mankind”; which in article 3 guaranteed liberty; and which in article 9 proscribed “arbitrary arrest, detention or exile.” It was aimed at the midnight knock on the door; the sudden disappearance; the prolonged detention. Article 5 was not aimed at Katherine, seriously physically and mentally disabled, who is living in her own home and cared for round the clock by carers paid for by an organ of the state.
  2. In this case TB will not be cared for at a place which she understands to be her home. Further, she has the motor functions to achieve a departure in a meaningful sense. She will be monitored round the clock and were she to leave to try to go “home” she would be brought back. Her situation is therefore very different to Katherine’s, and the acid test is met. Although I personally cannot see that her situation amounts to state detention in any sense other than by reference to the term of art devised by the majority in the Supreme Court, I must loyally follow that decision. I therefore declare that TB’s care regime does involve detention under Article 5. Accordingly there must be at least six-monthly reviews by this Court, no doubt at some considerable expense to the public purse.
  3. At para 1 of my decision in Rochdale Metropolitan Borough Council v KW I referred to the very serious resource implications to local authorities and the state generally if periodical court reviews are required in such cases. Notwithstanding the arrival of the streamlined procedure recently promulgated by the Court of Protection Practice Direction 10AA there will still be tens if not hundreds of thousands of such cases and hundreds of thousands if not millions of documents to be processed. The streamlined procedure itself requires the deployment of much man and womanpower in order to identify, monitor and process the cases. Plainly all this will cost huge sums, sums which I would respectfully suggest are better spent on the front line rather than on lawyers

 

There’s some force in that – the Supreme Court have, in setting out the law, put many thousands of people in living circumstances which now amount to a breach of article 5, and the Court of Protection is going to be swamped with cases. Mostyn J has taken a pragmatic line, and we wait to see if the Court of Appeal think the same.  For my part, I think that the Supreme Court captured this point and the fact that on the ground it has enormous consequences for very many cases doesn’t detract from the principle.  The Supreme Court have explained what the test is, and the fact that it is going to have massive repercussions can only go so far.

 

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Let’s find you a nice young man

Posted on April 30, 2014 by suesspiciousminds

The law on capacity and sexuality is developing swiftly at the moment, and throwing up some really difficult decisions.

In A Local Authority v TZ (no 2) 2014, the Court of Protection went on from its first judgment that the man, TZ, had the capacity to consent to sexual intercourse. TZ was homosexual, so one of the three principles (does the person understand the mechanics, the risk of STDs and the risk of pregnancy) doesn’t apply.

 

http://www.bailii.org/ew/cases/EWHC/COP/2014/973.html

The issue that then arose was whether TZ had capacity to make safe choices about people he might chose to have sex with.

 

 

  • Accordingly, the questions arising here are:

 

 

 

(1) whether TZ has the capacity to make a decision whether or not an individual with whom he may wish to have sexual relations is safe, and, if not, 

(2) whether he has the capacity to make a decision as to the support he requires when having contact with an individual with whom he may wish to have sexual relations.

 

[I personally bear in mind that almost every parent ever would have wanted at some point and even for a brief flickering moment, the right to veto their child’s choice of boyfriend or girlfriend, but we have to let them make their own mistakes in life. There are certain people who like “bad boys”, sometimes they grow out of it, sometimes they don’t. Most teenagers would prefer someone that their parents disapproved of   –  John Bender in the Breakfast Club would be no parents choice for their child, but the parents choice of Brian isn’t going to fly. But this is a tricky situation – TZ clearly had some vulnerabilities. The Judge carefully reminded himself of the tension between being protective and giving people freedom to make what others might see as poor choices]

bender

 

John  Bender  (bad boy alert)

 

Parent's choice, lovely Brian

Parent’s choice, lovely Brian

  • In addressing the issues of capacity in this case, I bear in mind a number of other points of law.

 

 

 

  • Importantly, capacity is both issue-specific and time specific. A person may have capacity in respect of certain matters but not in relation to other matters. Equally, a person may have capacity at one time and not at another. The question is whether, at the date on which the court is considering capacity, the person lacks the capacity in issue.

 

 

 

  • Next, as Macur J (as she then was) observed in LBL v RYJ [2010] EWHC 2664 (Fam) (at paragraph 24), “it is not necessary for the person to comprehend every detail of the issue … it is not always necessary for a person to comprehend all peripheral detail .…” The question is whether the person under review can “comprehend and weigh the salient details relevant to the decision to be made” (ibid, paragraph 58).

 

 

 

  • Furthermore, in assessing the question of capacity, the court must consider all the relevant evidence. Clearly, the opinion of an independently-instructed expert will be likely to be of very considerable importance, but in addition the court in these cases will invariably have evidence from other professionals who have experience of treating and working with P, the subject of the proceedings, and sometimes from friends and family and indeed from P himself.. As Charles J observed (in the analogous context of care proceedings) in A County Council v KD and L [2005] EWHC 144 (Fam) [2005] 1 FLR 851 at paras 39 and 44, “it is important to remember (i) that the roles of the court and the expert are distinct and (ii) it is the court that is in the position to weigh the expert evidence against its findings on the other evidence… the judge must always remember that he or she is the person who makes the final decision”. Thus, when assessing the ability of a person to (a) understand the information relevant to the decision (b) retain that information, and (c) use or weigh that information as part of the process of making the decision, the court must consider all the evidence, not merely the views of the independent expert.

 

 

 

  • Finally, I reiterate the further point, to which I have alluded in earlier decisions, including PH v A Local Authority, Z Ltd and R [2011] EWHC 1704 (Fam) and CC v KK [2012] EWHC 2136 (COP). In a case involving a vulnerable adult, there is a risk that all professionals involved with treating and helping that person – including, of course, a judge in the Court of Protection – may feel drawn towards an outcome that is more protective of the adult and thus, in certain circumstances, fail to carry out an assessment of capacity that is detached and objective.

and later

 

 

  • In this context, as so often, the way forward is illuminated by observations of Munby J, as he then was, on this occasion in Re MM (An Adult) [2007] EWHC 2003 (Fam). In that case (decided under the inherent jurisdiction), the Court was concerned with the approach to be adopted in a case of a person who had capacity to consent to sexual relations but lacked the capacity to make decisions about contact with a long-term partner. In such circumstances, Munby J held that “the court … is entitled to intervene to protect a vulnerable adult from the risk of future harm – the risk of future abuse or future exploitation – so long as there is a real possibility, rather than a merely fanciful risk, of such harm. But the court must adopt a pragmatic, common sense and robust approach to the identification, evaluation and management of perceived risk” (paragraph 119).

 

 

 

  • The following much-quoted paragraph is particularly relevant:

 

 

“A great judge once said, ‘all life is an experiment’, adding that ‘every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge (see Holmes J in Abrams v United States (1919) 250 US 616 at 630). The fact is that all life involves risk, and the young, the elderly and the vulnerable, are exposed to additional risks and to risks they are less well equipped than others to cope with. But just as wise parents resist the temptation to keep their children metaphorically wrapped up in cotton wool, so too we must avoid the temptation always to put the physical health and safety of the elderly and the vulnerable before everything else. Often it will be appropriate to do so, but not always. Physical health and safety can sometimes be brought at too high a price in happiness and emotional welfare. The emphasis must be on sensible risk appraisal, not striving to avoid all risk, whatever the price, but instead seeking a proper balance and being willing to tolerate manageable or acceptable risks as the price appropriately to be paid in order to achieve some other good – in particular to achieve the vital good of the elderly or vulnerable person’s happiness. What good is it making someone safer if it merely makes them miserable?”

 

 

I won’t get heavily into the particular facts in the case, they are all set out in the judgment should you want to read them – there was quite a body of professional opinion that TZ lacked the skills to weigh up whether someone was a safe person to approach or have sex with.

 

The Court’s decision on capacity is set out below

 

  • I find on a balance of probabilities that TZ does not have the capacity to decide whether a person with whom he may wish to have sexual relations is safe. I base that finding on the detailed assessments of TZ carried out by JS and Dr X, both of whom have had an opportunity to assess him over a period of time. These assessments include extensive conversations with TZ in which he has himself acknowledged that he lacks this capacity. In particular, while he has the ability to understand and retain information, he lacks the ability to use or weigh up the information, including the ability to assess risk and, in the language of s. 3(4), to understand the reasonably foreseeable consequences of the decision. This is, in my judgment, a good example of the distinction identified in paragraph 4.30 of the Code of Practice between, on the one hand, unwise decisions, which a person has the right to make, and, on the other hand, decisions based on a lack of understanding of risks and the inability to weigh up the information concerning a decision.

 

 

 

  • I have also borne in mind s. 1(2) – that a person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success. Having regard to Dr X’s advice, however, I consider that there is no immediate prospect of extending TZ’s capacity via a programme of education. Such a programme must, of course, be an integral part of the best interests care plan which would be put in place as a result of a declaration of incapacity.

 

 

 

  • The evidence therefore establishes that he lacks the capacity to decide whether or not any individual with whom he may wish to have a sexual relationship is safe. As to the second capacity in issue, JS concluded in her report that he did have the capacity to make decisions regarding his care and support. In oral evidence, however, JS qualified this opinion, saying that TZ can understand why he needs support “if he is in the right frame of mind”, and that his capacity in this respect is variable. She said that sometimes he is more open about taking things on board than at other times. Dr X concluded that TZ lacked this capacity. He thought that TZ’s current compliance with support did not mean that he understands the need for that support and thought it quite likely that at some stage he would ask a support worker to leave.

 

 

 

  • Notwithstanding the view set out in JS’s written assessment, I conclude after close analysis that TZ does not have the capacity to decide what support he requires when having contact with an individual with whom he may wish to have sexual relations.

 

 

 

  • In reaching these conclusions as to capacity, I have reminded myself, again, of the need to avoid what could be called the vulnerable person’s protective imperative – that is to say, the dangers of being drawn towards an outcome that is more protective of the adult and thus fail to carry out an assessment of capacity that is detached and objective. I do not consider that I have fallen into that trap in this case.

 

 

But having established that TZ lacks that capacity, the Court then have to approach any declarations with a view to what is in TZ’s best interests

 

 

 

 

“First, P’s wishes and feelings will always be a significant factor to which the court must pay close regard …. Secondly, the weight to be attached to P’s wishes and feelings will always be case-specific and fact-specific …. Thirdly, in considering the weight and importance to be attached to P’s wishes and feelings, the court must … have regard to all the relevant circumstances … [which] will include … (a) the degrees of P’s incapacity … (b) the strength and consistency of the views being expressed by P; (c) the possible impact on P of knowledge that [his] wishes and feelings are not being given effect to … (d) the extent to which P’s wishes and feelings are, or are not, rational, sensible, responsible and, pragmatically capable of sensible implementation in the particular circumstances; and (e) crucially, the extent to which P’s wishes and feelings, if given effect to, can properly be accommodated within the court’s overall assessment of what is in [his] best interests.”

 

  • Mr. McKendrick further submits, rightly, that in applying the principle in s.1(6) and generally, the Court must have regard to TZ’s human rights, in particular his rights under article 8 of ECHR to respect for private and family life. As the European Court of Human Rights observed in Niemitz v Germany (1993) 16 EHRR 97 at para 29, “private life” includes, inter alia, the right to establish relationships with other human beings. This has been reiterated on a number of occasions, see for example Pretty v UK (2002) EHRR 1 at paragraph 61 and in Evans v UK (2008) 46 EHRR 34 at paragraph 71. There is a positive obligation on the state to take measures to ensure that his private life is respected, and the European Court has stated that “these obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves”: Botta v Italy (1998) 26 EHRR 241 paragraph 33.

 

 

 

  • These principles plainly apply when considering what steps should be taken to protect someone, such as TZ, who has the capacity to consent to sexual relations but lacks both the capacity to make a decision whether or not an individual with whom he may wish to have sexual relations is safe and the capacity to make a decision as to the support he requires when having contact with such an individual. In such circumstances, the state through the local authority is under a positive obligation to take steps to ensure that TZ is supported in having a sexual relationship should he wish to do so.

 

 

 

  • In passing, it should be noted that this is consistent with the provisions of the United Nations Convention on the Rights of Persons with Disabilities, (ratified by the UK in 2009 although not yet incorporated into English law) and in particular article 23 which requires states to “take effective and appropriate measures to eliminate discrimination against persons with in all matters relating to marriage, family, parenthood and relationships, on an equal basis with others”.

 

 

 

  • In addition, the state is under an obligation to take steps to protect TZ from harm.

 

How to apply those principles to TZ’s case

 

  • In the light of these principles and dicta, what steps should this court now take in TZ’s best interests?

 

 

 

  • On behalf of the Official Solicitor, Mr. McKendrick asserts that the challenge for the parties and the court is to develop a best interests framework which permits TZ sufficient autonomy of decision-making and respects his right to a private life whilst balancing the need to protect him from harm. He identifies three options: (1) take no best interests decision at this stage but react should TZ find himself in a situation when he is the subject of harm or at risk of harm; (2) require the applicant local authority to draft a care plan and submit it to the court for approval; (3) appoint a welfare deputy to make decisions on TZ’s behalf. Neither party is advocating for the first option. Both parties agree that the court should direct the local authority to file a care plan. The issues are, first, as to the contents of that plan and, secondly, whether a welfare deputy should be appointed.

 

 

 

  • The local authority has filed a draft care support plan. The Official Solicitor has made a number of observations about that plan. There is considerable common ground between the two parties, but some differences remain.

 

 

 

  • What follows are some proposals by the court for the sort of measures that should be included in the plan. Decision-making for incapacitated adults should, as far as possible, be a collaborative exercise. The observations as to the contents of the plan should be seen as part of that process.

 

 

 

  • I propose that the plan should contain the following elements: (a) basic principles; (b) education and empowerment; (c) support; (d) intervention; (e) decision-making. Under this last heading, I shall consider the local authority’s application for the appointment of a deputy.

 

 

(a) Basic principles

 

  • The basis for the plan is uncontroversial and can be summarised as follows.

 

 

 

(1) TZ lives at H Home. In due course, he may move to a step-down facility and, in the long run, into supported living. 

(2) He will have available to him a number of hours of 1 : 1 support every week. Currently that is fixed at 32 hours.

(3) He has capacity to consent to and enter into sexual relations. He has the right to establish relationships with other human beings and wishes to meet other men with whom he may have sexual relations.

(4) He lacks the capacity to make a decision whether or not an individual with whom he may wish to have sexual relations is safe and the capacity to make a decision as to the support he requires when having contact with such an individual.

(5) The local authority and the Court are under a positive obligation to ensure that he is supported in having a sexual relationship should he wish to do so, but also to ensure, as far as possible, that he is kept safe from harm.

(6) The purpose of the plan is therefore to identify the support to be provided to assist him in developing a sexual relationship without exposing him to a risk of harm.

 

You can see, hopefully, that the overall goal of the plan is to keep TZ safe whilst teaching him the skills he will need to keep himself safe – he is not prevented from forming relationships with other men, nor indeed from having sex with them; it is more that he is to be assisted in making those decisions.

 

Getting down to brass tacks though, what are professionals supposed to do if TZ meets someone he is attracted to?

 

 

  • Mr McKendrick submits, and I agree, that TZ must have some “space” to make decisions for himself, even if this involves making mistakes, to assist him to learn (as far as he can) from the consequences of those decisions. Mr Dooley indicated that the local authority agreed that learning through experience is critical for TZ.

 

 

 

  • Mr McKendrick further submits, and I accept, that, should TZ meet a stranger, he is entitled to have private time with that person and support staff should intervene only if there is an identified risk of that person being abusive towards TZ. I agree with the Official Solicitor that the local authority and its support staff cannot interview or ‘vet’ anyone with whom TZ wishes to communicate and cannot assume that everyone he speaks to is likely to present a risk of abuse. Mr Dooley stated that the local authority’s position is that, if there is a problem in these circumstances, there will need to be a risk assessment to determine whether intervention is required. Having identified that intervention is required, the next step would be to consider the least restrictive intervention necessary to ensure that TZ is safe.

 

 

 

  • In the event that TZ decides he wishes to spend the night with someone, the care plan must provide that a private space can be made available. H Home has now indicated that he will be permitted to have a visitor to stay subject to the proviso that any visitor would have to be subject to safeguarding checks to protect other residents. A similar provision would be made in the event that TZ moved to a step-down facility.

 

 

 

  • If TZ meets someone and develops a relationship, or if he says he wishes to leave H Home and cohabit with another person, a specific capacity assessment will be required to determine whether he has the capacity to make a decision about contact with that person. If the outcome is that he has capacity, the sexual relationship should be facilitated, unless it is concluded that there is a significant risk of harm. If the assessment concludes that he lacks that capacity, or that there is a likelihood that he will suffer significant harm as a result of a relationship, a further application will have to be made to the court. If the court accepts that he lacks capacity, a best interests decision will then be made. If the court concludes that he has capacity, but that he is at risk of harm, it may be that the court would resort to protective powers under its inherent jurisdiction as to vulnerable adults. At all stages, of course, TZ must be assisted to participate in the decision-making process.

 

 

It is not the role of the Local Authority to ‘vet’ TZ’s partners or potential partners, nor do they have a role of veto

 

 

  • the plan must clearly delineate the circumstances in which care workers may intervene to protect TZ and the steps they are entitled to take when intervening.

 

 

 

  • On behalf of the Official Solicitor, Mr McKendrick submits, and I accept, that it is not the role of the local authority staff to vet TZ’s sexual partners. They must not deny him private time with a proposed sexual partner simply because they consider that partner is unsuitable, unless there is a clearly identified risk that the proposed partner poses a real risk of abuse to TZ during their contact. As the Official Solicitor submits, the assessment of abuse must be rigorous and evidence-based, or, adopting the phrase used by Munby J in Re MM, (supra) “pragmatic, common sense and robust”. As the Official Solicitor points out, capacitous adults also run the risk of abuse and harm. The adults protecting TZ must be given the tools to assist him, because of his vulnerabilities, but they cannot act in his best interests by attempting to eliminate all risks of harm. (“What good is making someone safe if it merely makes them miserable?”)

 

 

 

  • As JS has set out in her draft support plan, if TZ says he wants to go off with someone he has just met, the care workers would try to dissuade him, reminding him of the staged approach to new relationships previously discussed and agreed. In the event that he refused to listen to support workers in those circumstances, and where there were concerns regarding the risk of harm, the care worker involved should immediately alert management, who would in turn ensure that legal representatives were informed. A decision would then be taken as to whether the police should be informed, and/or whether an application should be made to the Court of Protection.

 

There was a mental health case in the last year, where a Judge set down a seventeen point plan of things that ought to be considered by a hospital before deciding that a patient was so dangerous that he needed to be transferred to a safer hospital, and the Court of Appeal ended up observing that if you get a Judge to draw up a model, he or she invariably draws up a very judicial/lawyery one which attempts to dot every i, and cross every t, but reality doesn’t always allow for that.  I think that this is a damn good attempt to put a framework in place that tries to give TZ freedom and keep him safe and they are laudable aims – I am certain that I could not have done any better.  But it does bring up the mental picture of a man smiling at TZ in Starbucks and staff members thumbing through the judgment to initiate “Phase Four of the plan”

 

Do you suspect that the staff will be likely to be on low alert for a Brian, but be contemplating intervention for the bad-boy type?

 

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Capacity to consent to sexual intercourse

Posted on October 7, 2013 by suesspiciousminds

Another useful case on this issue from Baker J sitting in the Court of Protection.

A Local Authority v TZ  2013

http://www.bailii.org/ew/cases/EWHC/COP/2013/2322.html

There are a few unusual features of this case – firstly that the Local Authority and the Official Solicitor representing TZ were in agreement that TZ DID have capacity to consent to sexual intercourse and it was the expert who was not, thus leading to the need for a Judge to make the determination.

Secondly, as illustrated very neatly by Baker J, there is the potential line of conflict between authorities decided in the Court of Protection and authorities decided in the Supreme Court, as to whether capacity to consent to sexual intercourse was merely ‘act specific’  (as the Court of Protection have said) or whether it is ‘act and person specific’  (as Baroness Hale said in R v Cooper 2009 which was a criminal prosecution)

  1. How is a court to determine capacity to consent to sexual relations? It is well established that capacity to marry is to be assessed in general and as a matter of principle and not by reference to any particular proposed marriage: see the decision of Munby J (as he then was) in Sheffield City Council v E [2005] Fam 326, approved by the Court of Appeal in the PC case (supra) at paragraph 23 of McFarlane LJ’s judgment. It is act specific and status specific rather than person specific or spouse specific. In a further case, Local Authority X v MM [2007] EWHC 2003 (Fam), hereafter referred to as ‘MM‘, Munby J adopted the same approach to capacity to consent to sexual relations, holding that it, too, is act specific rather than person specific. At paragraph 86 Munby J said:

“The question [capacity to consent to sexual relations] is issue specific, both in the general sense and…in a sense that capacity has to be assessed in relation to the particular kind of sexual activity in question. But capacity to consent to sexual relations is, in my judgment, a question directed to the nature of the activity rather than to the identity of the sexual partner.”

 

  1. This approach was, however, disapproved by Baroness Hale of Richmond in R v Cooper [2009] UKHL 42 [2009] 1 WLR 1786 in the context of a criminal prosecution for an offence of sexual activity with a person with a mental disorder impeding choice, contrary to the Sexual Offences Act 2003. In paragraph 27 of her speech in that case, Baroness Hale observed:

“My Lords, it is difficult to think of an activity which is more person-and situation-specific than sexual relations. One does not consent to sex in general. One consents to this act of sex with this person at this time and in this place. Autonomy entails the freedom and the capacity to make a choice of whether or not to do so. This is entirely consistent with the respect for autonomy in matters of private life which is guaranteed by article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The object of the Sexual Offences Act 2003 was to get away from the previous ‘status’ – based approach which assumed that all ‘defectives’ lacked capacity, and thus denied them the possibility of making autonomous choices, while failing to protect those whose mental disorder deprived them of autonomy in other ways.”

Mostyn J grappled with this tension in D Borough Council v AB 2011

  1. In D Borough Council v AB [2011] EWHC 101 (Fam), [2011] COPLR Con Vol 313, [2011] 2 FLR 72, a case involving a man with a moderate learning disability, whom the judge referred to as ‘Alan’, Mostyn J grasped the nettle of addressing the conflict between Munby J’s decision in MM, a case that pre-dated the Mental Capacity Act, and Baroness Hale’s observations in R v Cooper, a Supreme Court case that post-dated the Mental Capacity Act but were made in the context of a case involving a different statutory provision. Mostyn J came down firmly on the side of Munby J’s approach. Having acknowledged the correctness of Baroness Hale’s observation quoted above that ‘it is difficult to think of an activity that is more person-and situation-specific than sexual relations’, he added (paragraph 35):

“but the same is true (if not truer) of marriage. But it does not follow that capacity to marry is spouse-as opposed to status- specific. Far from it. I do think, with the greatest possible respect, that there has been a conflation of capacity to consent to sex and the exercise of that capacity. There is also a very considerable practical problem in allowing a partner-specific dimension into the test. Consider this case. Is the local authority supposed to vet every proposed sexual partner of Alan to gauge if Alan has the capacity to consent to sex with him or her?”

And Baker J notes that there is the possibility of the Court of Protection line coming into difficulties if a case ever goes to the Supreme Court, but concludes that in this case   (particularly since what TZ intended was to embark on sexual relationships with persons he considered suitable in the future who he had not yet met, rather than with a single known partner) it was more proportionate to look at whether TZ had capacity on an ‘act specific’ way, rather than whether he had capacity to consent to sex with particular individuals.

I can see merit on both sides – if for example, a person with difficulties was in a relationship with a partner who was very alive to his issues and very skilled in explaining things to the person and had no intention of taking advantage of them, that might require slightly less capacity than a partner with very different approach and morals. I think that on the issue of intrusion, however, Baker J was right.

The next interesting aspect is the three-tier test of capacity to consent to sexual intercourse as devised by Munby J and endorsed by Mostyn J in D Borough Council v AB 2011

  1. 27.   “I therefore conclude that the capacity consent to sex remains act-specific and requires an understanding and awareness of: the mechanics of the act; that there are health risks involved, particularly the acquisition of sexually transmitted and sexually transmissable infections; that sex between a man and a woman may result in the woman becoming pregnant.”

 

There has been speculation, including within judgments as to whether all three elements are applicable where there is no risk of pregnancy (particularly with regard to a homosexual relationship)

The issue arose specifically in this case, as TZ’s sexual orientation was homosexual, and he wished to have sex with men, rather than women.

I believe that this is the first time that the Court of Protection have decided the issue, rather than simply speculated about it. So, this is the key passage

  1. I therefore conclude that in the case of a person in respect of whom it is clearly established that he or she is homosexual – gay or lesbian – it is ordinarily unnecessary to establish that the person has an understanding or awareness that sexual activity between a man and a woman may result in pregnancy.
  1. Having said that, it goes without saying that human sexuality is profound and complex and there are many people, such as Alan in D Borough Council v AB and indeed TZ in the current case, who have, at times, been attracted to both men and women. In those circumstances, it will be necessary to establish an understanding and awareness of the fact that sex between a man and a woman may result in pregnancy as part of the assessment of capacity to consent to sexual relations.

Having established the appropriate test (did TZ understand the mechanical action and the health risks?) the Judge then considered whether TZ met that test

  1. TZ spoke frankly about his own sexuality. He said that he had come out as gay about a year ago. Before that, he had been a bit confused but now was not. There are some reports in the local authority records suggesting that he may have been attracted to women at one stage since he moved into H Home. TZ was clear that this was no longer the case. “I’m not attracted to women at all, just men.” He said that it was important to be friends first with someone before moving onto a sexual relationship. Asked what he would get out of such a relationship, he identified sexual pleasure, but also thought it was important “to be happy and healthy, not be abused, and not be let down”. It seemed to me that he was referring back to unhappy experiences in previous relationships. “It’s not just the sex, it’s about being happy and safe and secure in the relationship.”
  1. TZ described in simple terms the physical acts of sex both between a man and a woman and between two men. He indicated that he understood that, “if men and women have sex, the woman can get pregnant”. He knew that a man cannot become pregnant. He was aware of the health risks from sexual activity, and listed the names of several sexually transmitted diseases. He said that the way of avoiding catching any of these diseases was to use a condom. He said that he knew there was a risk of the condom splitting, and in those circumstances he would get himself tested. He has been tested twice before for HIV. On each occasion, the test was negative.
  1. He said that he would like to have the opportunity to meet a man, by going to places such as gay bars. He said that he had learned to take his time because “you can’t judge a book by its cover”. He said he would rather not rush things, but would rather wait to see if he could trust the man. He would not have sex on a first encounter but would wait until he knew the man a little better. “Sometimes it’s easy to make the right choice, sometimes it isn’t, but I would try to make the right choice.”

The expert’s view seemed to be that TZ did not meet the test because he was not able to use and weigh information before making a decision in relation to sexual intercourse and did not have an understanding of the emotional consequences involved.

The Judge rejected that argument.

  1. It seems to me, with respect, that Dr. X is making a similar error as that made by the expert in D Borough Council v AB when he stipulates that the ability to use and weigh relevant information before consenting to sexual relations involves “a complex analysis of risks and benefits often in the abstract and hypothetical”. In D Borough Council v AB, the expert suggested that one essential ingredient of capacity to consent to sexual relations was “an awareness that sex is part of having relations with people and may have emotional consequences”. Mostyn J observed in response (at paragraph 37):

“This criterion is much too sophisticated to be included in the low level of understanding and intelligence needed to be able to consent to sex. Apart from anything else, I would have thought that a great deal of sex takes place where one party or the other is wholly oblivious to this supposed necessity.”

  1. Most people faced with the decision whether or not to have sex do not embark on a process of weighing up complex, abstract or hypothetical information. I accept the submission on behalf of the Official Solicitor that the weighing up of the relevant information should be seen as a relatively straightforward decision balancing the risks of ill health (and possible pregnancy if the relations are heterosexual) with pleasure, sexual and emotional brought about by intimacy. There is a danger that the imposition of a higher standard for capacity may discriminate against people with a mental impairment.
  1. In any event, I am satisfied in this case, having spoken to TZ myself, that he does have an understanding of the need to weigh up the emotional consequences of having sexual relations. This was evident to me from his comment that he would rather not rush things, but would rather wait to see if he could trust the man and by his observation that “sometimes it’s easy to make the right choice, sometimes it isn’t, but I would try to make the right choice.” This insight seemed to me to be well above the level of “rudimentary” ability required.
  1. Overall, I find that TZ does have the capacity to use and weigh the information to the degree required for capacity to consent to sexual relations. I think he has been significantly helped in that regard by the sensitive programme of sex education he has received. Like most people, he may behave impulsively at some point in the future, and in his case that tendency may be accentuated by his ADHD, but I do not consider that this tendency means that he lacks the ability to use and weigh the relevant information.
  1. I therefore declare that TZ has the capacity to consent to and engage in sexual relations

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Capacity and Vasectomy

Posted on August 19, 2013 by suesspiciousminds

The decision in Re DE  2013 , and issues arising from this

 

http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/de-judgment-16082013.pdf

 

I will start by saying that this is obviously a controversial judgment, dealing with the State intervening in the private life of an individual, and the Court authorising the sterilisation of a man who did not have capacity to agree to such an operation.

 

I actually think that the judgment was very fair and well-balanced and carefully looked at the need to respect DE’s rights and interests, and did not smack of the patrician attitude or eugenic approach that one might think going by some of the media reporting. I only have one real critique of it, but it is an important one.  There are some really good articles analysing this decision, in both a critical and supportive tone, and it is a thought-provoking issue.

 

This was a Court of Protection decision, dealing with the application by the NHS for the following three declarations

 

a) DE does not have capacity to make a decision on whether or not to undergo a vasectomy and to consent to this procedure;

b) That it is lawful and in DE’s best interests that he should undergo a vasectomy;

c) It is lawful for the NHS Trust to take any steps which are medically advised by the treating clinicians at the trust responsible for DE’s care to undertake this procedure which may include the use of a general anaesthetic and all such steps as may be necessary to arrange and undertake the procedure including general anaesthesia.

 

 

 

 

The Court went on to note what made the declarations sought newsworthy (and indeed the case made national news)

 

            If the declarations sought are made it will, the court is told by the Official Solicitor, be the first time that a court in this jurisdiction has made orders permitting the sterilisation for non therapeutic reasons of a male unable to consent to such a procedure.

 

 

 

There was quite a well-balanced piece on this in the Guardian, for example

 

http://www.theguardian.com/law/2013/aug/16/court-sterilisation-man-learning-difficulties

 

It is important to note at an early stage, that if DE had capacity to make decisions for himself (and the Mental Capacity Act 2005 has as a starting point that people DO have such capacity unless demonstrated otherwise) then the Court have no real role in matters save for determining whether he does or does not have capacity. 

 

People get to make decisions for themselves, unless the Court declare that they don’t have capacity to make that decision; and in broad terms the capacity means that with help and guidance the person can understand the competing factors involved, can weigh up those factors, and can communicate their decision.  (It is REALLY important to understand that a person with capacity can still make what appear to be really stupid or bad decisions; capacity isn’t about people making logical decisions but that they understand  (a) that there are factors to take into account and what those factors are (b) that they should weigh up those factors and are capable of doing so and (c) can communicate their decision afterwards. The law doesn’t, or shouldn’t, interfere with people making foolish decisions, only with people who don’t have capacity to make a decision)

 

If he has capacity, the operation will only take place if both he and the doctors agree to it.  It irked me considerably how many of the reports of the case by the media made reference to DE “agreeing to the vasectomy” – if he had capacity to agree to it, the decision wouldn’t have been made by a Court, what he had were wishes and feelings about it which fell short of capacity to make the decision. Those are important to take into account in the stage AFTER capacity, which is “what is in this person’s best interests to do next?”

 

 

The history is fairly simple.

 

2. DE suffers from a learning disability. He lives with his parents FG and JK. With the dedication of his parents and the support of his local disability services, DE has prospered and achieved far beyond what may have been expected given his level of disability. Prior to 2009, not only had he achieved a modest measure of autonomy in his day to day life, but he had a long standing and loving relationship with a woman, PQ, who is also learning disabled.

3. In 2009 PQ became pregnant and subsequently had a child XY. The consequences were profound for both families; legitimate concerns that DE may not have capacity to consent to sexual relations meant that protective measures had to be put in place to ensure that DE and PQ were not alone and DE became supervised at all times. DE was clear that he did not want any more children. His relationship nearly broke under the strain but remarkably it has weathered the storm

4. There is no question of DE having the capacity to make decisions as to use of contraception. FG and JK formed the view that the best way, in his interests, to achieve DE’s wish not to have any more children and to restore as much independence as possible to him was by his having a vasectomy.

 

 

Unfortunately for me, I think the key issue is actually the matter dismissed in a single sentence at para 4 (my underlining)

 

I think there were 3 separate issues on which one needs to know if DE had capacity

 

(a)  Can he consent to sex  (if not, contraception not all that important, because the State can’t condone him engaging in sexual intercourse)

 

(b)  Does he have capacity to make decisions about contraception? (if he can, vasectomy only an issue if he DECIDES that he wants to go the vasectomy route)

 

(c)  Does he have capacity to consent to a vasectomy operation?

 

 

A capacity report undertaken in November 2012 concluded that DE did not have capacity to consent to sexual intercourse. That obviously posed significant problems for his relationship with PQ, and what obligations were on the other members of the family to prevent a sexual relationship taking place.

 

(There are some really big issues here about a case where two people with capacity issues love each other and wish to express those feelings physically, although they do not reach the level of understanding the law deems as being able to consent to sexual intercourse. Probably neither has the mens rea needed to commit the offence, but their carers could find themselves in legal difficulty for not having prevented such an offence occurring. Whilst it is VITAL that the law protects people who lack capacity to understand the nature of sex from being exploited by those who do, it seems to interfere profoundly with the private life of two such people in a relationship together. This is a really really tough issue, and I have no idea how one would legislate about it, but I suspect we are not that far off a Court hearing dealing with this specific issue)

 

 

 

The Court made an interim declaration following that report that DE did not have capacity to consent to sexual intercourse and the relevant Local Authority had to convene a safeguarding meeting and come up with a plan to protect DE from unlawful sexual activity.

 

At a hearing on 15 November 2012 in the light of Dr Milnes’ report the court made by consent an interim declaration that DE did not have the capacity to consent to sexual relations. The Local Authority, quite properly and appropriately, thereafter held a Safeguarding Adults’ Conference on 30 November 2012. A Protection Plan was put in place meaning that DE and PQ were not to be left alone without supervision. Inevitably this had a significant impact on all DE’s activities, for example transport home being provided instead of DE getting the bus to avoid chance meetings with PQ. MB summarised the impact on DE as having experienced the loss of:

a) Engaging without supervision/staff support, with the local community

b) Walking through town from one venue to another with a friend

c) Going to shops, making purchases, interacting with traders and passers by

d) Using the local gym and facilities on the same terms as any other participant

and that is before one factors in the loss to DE of any form of privacy or time on his own with his long term girlfriend.

At about this time PQ ended the relationship with DE to his considerable distress. At the time it was not clear why PQ had decided to do this but, in due course, it was realised that she had wrongly believed that these proceedings in some way related to XY and she thought that if she stayed with DE she might lose her baby. In addition to this fear it had had to be explained to PQ that if she and DE had sexual intercourse she would be committing a criminal offence. It is hardly surprising that, frightened and with a limited ability wholly to understand what was happening, PQ completely withdrew from DE. DE therefore suffered a further loss, namely the loss of PQ between about November and June of 2013.

MB initially felt that DE coped well with the increased supervision and filed a statement to that effect but, as time went on it became clear to her that there was in fact a marked adverse impact upon DE. Gradually his ability to go out and to do things on his own was being lost and by April 2013 there were considerable concerns about DE’s reduced level of independence. It has to be remembered that each achievement on DE’s part takes months if not years to be gained and if not used and reinforced is quickly lost. FG told me that as winter approached last year DE stopped going to the day centre on the bus on his own, she said DE said that it was because it was cold, but Dr Milne felt it may well have been a loss of confidence and fear of doing wrong

 

 

And so one can see that the legitimate desire to protect DE from unlawful sexual intercourse ended up having all sorts of detrimental impacts on his quality of life and independence.

 

Work was undertaken to try to raise DE’s awareness of sexual matters, to lift his understanding to a point where he COULD be judged to have capacity to consent to it, it being plain that DE and PQ wished to be in a relationship and wished physical intimacy to be a part of that.

 

34. The Official Solicitor has felt it necessary, notwithstanding the universal views now expressed by the witnesses, to explore the issue as to DE’s capacity to enter into sexual relations. At the conclusion or the oral evidence in relation to this aspect of the case, the Official Solicitor now accepts that the court should proceed on the basis that DE has capacity to enter into sexual relations. Having read all the reports and heard the evidence I am satisfied that DE has capacity to enter into sexual relationships, although it will be necessary for him to have so called ‘top-up’ sessions to ensure that he remembers how to keep himself safe from sexually transmitted infections and diseases.

            Whilst DE can consent to having a sexual relationship, it is accepted by all parties that he does not have capacity to consent to contraception and will not regain the necessary capacity. It is therefore remains for the court to determine whether or not it is in DE’s best interests to have a vasectomy. In order to carry out the balancing exercise required in order for the court to reach a decision it is necessary for the court to consider in some detail certain aspects of DE’s life and of his views in so far as they can be ascertained.

 

 

 

And then, on ability to consent to the surgical procedure of a vasectomy

 

52    t is agreed that DE lacks the capacity to weigh up the competing arguments for and against having a vasectomy. That is not going to change no matter how dedicated and skilful the work carried out with DE may be. His wishes and feelings in relation to having a vasectomy have rightly been explored. He has been broadly been in favour of the idea although in his most recent session with CH and ZZ on 23 July 2013 and with Dr Milnes, he expressed a view that he would prefer to use condoms. Neither CH nor Dr Milnes think these recent meetings are wholly to be relied upon. On 23 July, DE had just learnt that a very close friend had died and was deeply distressed, in addition, he had just had a session in which the issue of pain immediately following a vasectomy was discussed with DE. CH thought that this may have been the influencing factor. Dr Milnes’ final view is that if it is explained to DE that a vasectomy is foolproof in relation to “no more babies”, but that he might conceive with a condom he would go for the vasectomy.

53    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.

 

Going back to my list then, DE had been determined to have capacity to have sexual intercourse, to lack capacity to make a decision about surgery and vasectomy.

 

That left issue number 2 – did he have the capacity to make his own decisions about contraception? If he did, the issue of surgery did not arise (other than that if he ASKED for a vasectomy, the medical professionals knew that he did not have capacity to consent to the operation)

 

What the heck is the test for a person’s capacity in making decisions about contraception? How did the Court establish whether or not DE had it?

 

            35.Whilst DE can consent to having a sexual relationship, it is accepted by all parties that he does not have capacity to consent to contraception and will not regain the necessary capacity. It is therefore remains for the court to determine whether or not it is in DE’s best interests to have a vasectomy. In order to carry out the balancing exercise required in order for the court to reach a decision it is necessary for the court to consider in some detail certain aspects of DE’s life and of his views in so far as they can be ascertained

 

And here

 

            54. In relation to the reported cases on consent to contraception there remains uncertainty as to whether a man needs to understand female contraception as well as male contraception before he is deemed to have capacity. In my judgment DE does not have the capacity to consent to contraception on any level. I therefore do not need to consider the issue and do not propose to comment on how a court, having heard full argument in a case where the issue is relevant, might decide.

 

I’m ever so slightly infuriated by this, if it is possible for such a state to exist.

 

It seems to me that before the Court embark on the best interests decision (which I consider was all done perfectly properly and I can quite see why the decision to declare that the NHS could perform the vasectomy was made) it was VITAL to decide what it was that DE did not have capacity to decide, and what the test for that capacity was.

 

Particularly given that he now had capacity to consent to intercourse, and that his capacity had been raised by intervention to reach that point. The capacity to consent to intercourse involves of course not just an understanding of the mechanics and the physical act, but the consequences of it (including pregnancy and the possibility of STDs)

 

I am struggling quite a bit to see how a person such as DE can be capable of understanding the consequences of sexual intercourse, but not making decisions about what contraceptive action to undertake. And of course, it takes two to tango, as the saying goes, so PQ’s ability to make decisions about contraception would factor into this.

 

[The Court said no in relation to the latter point, for these reasons. 

 

In my judgment the court should not factor into account any contraceptive measure PQ may be taking for two reasons:

i) The evidence is that PQ is unreliable in taking the contraceptive pill and has a phobia of needles so a Depo injection has been discounted.

ii) In the event that the relationship breaks down, it is likely that he will form another relationship. In the group of learning disabled people who form DE’s social circle, it is the norm for there to be relationships within the group; DE is popular and friendly and after 11 years with PQ accustomed to having a girlfriend. Even if PQ was wholly reliable in relation to her own contraceptive care, a future girlfriend may not be so assiduous.

 

I agree on point (i), am not so sure about point (ii)  – it seems to me that this would be a relevant factor in deciding when it arises, and not to fortune tell]

 

It was universally accepted that the decisions about how DE could have sex without producing offspring was something that he could not decide; but in nothing like the detail of the other two capacity decisions.

 

Once the Court accepted that DE did not have the capacity to make decisions about how to manage sex without producing offspring (and all parties accepted that he didn’t), the best interests decision was the next step, and in relation to this, I think the Court’s analysis is faultless from there on out.

 

The Court went on to balance the use of other contraceptives against a vasectomy, and used the reliability of those measures as a key factor; particularly taking into account the abilities and limitations of DE and PQ in reliably and properly undertaking those measures. The Court also went on to consider everything that DE and PQ had expressed about their wish for physical intimacy but not to have another child.

 

It is a very careful balance about what is best for DE, taking into account all of his circumstances and his wishes and feelings, and not putting too much emphasis on any one issue. I think it is a damn good judgment and decision.

 

I am just left a bit unsettled about the key issue – the decision under question was not “should DE have a vasectomy” but “should the State take over DE’s decision-making in relation to contraception”  (and thereafter, what’s better for DE – vasectomy or alternative contraception) and I remain very vague about what the test for capacity in relation to that question was, and why DE was considered not to satisfy it.

 

 

I can’t really blame the Court for not dealing with the issue of capacity to contraception in a more in-depth way, given that all parties accepted DE did not have it and the Judge concluding that she was completely satisfied that DE did not have it.

 

But I am left with a rather nagging feeling that it is hard to imagine that DE had capacity to consent to sex if he lacked capacity to make decisions about contraception  (understanding the potential negative consequences of sexual intercourse surely has to incorporate the persons ability to militiate against such consequences); and that perhaps a DE-focussed decision was made that declaring that he did not have capacity to consent to sex was going to have a massively detrimental impact on his life.

 

Although a declaration that a person can’t consent to an operation doesn’t mean that one progresses inexorably towards the operation being directed – a best interests decision needs to be taken, the same is not true of a consent to sexual intercourse.  Almost any capacity decision is followed by a best interests decision of what is best for the person. Almost any.

 

Save this one. The Court of Protection cannot declare that a person lacks capacity to consent to sexual intercourse, but that nonetheless a sexual relationship continuing or recommencing is in his best interests. Once that declaration is made, sex is off the agenda. And that clearly wasn’t in his best interests.

 

So I have a slight suspicion that there was an element of Judge Fudge on the contraception point, in order that DE and PQ could enjoy their relationship without producing further children (it being clear that neither of them wished to do so, but didn’t have the wherewithal to make sure that didn’t happen).  I am not critical in the slightest if that did happen, I think it was the right call for DE.

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“Capacity to marry”

Posted on August 6, 2013 by suesspiciousminds

Sandwell MBC and RG, GG and SK and SKG 2013 and whether an arranged marriage where the individual had no capacity should endure or be dismantled

http://www.bailii.org/ew/cases/EWHC/COP/2013/2373.html

This was a Court of Protection case, heard before Mr Justice Holman. It involved two adult males, both of whom had significant capacity issues.

After considerable investigation and careful consideration by the local authority, the Official Solicitor and experts variously instructed by them, it is now common ground: first, that GG and RG each lack the capacity to make a range of decisions as to where they reside, their care packages, their contact with others, and certain other matters; and, second, that it is in their respective best interest that there be a range of declarations and other orders in terms which have been carefully drafted, and with one exception, are agreed.

 

The ‘one exception’ is of course, the majority of the litigation. In 2009, RG’s family arranged a marriage for him, to a woman named SK, and that marriage took place in India.

SK then came to the UK. It was her evidence, accepted by the Court, that it was only subsequent to the wedding ceremony that  she learned that RG had profound difficulties. Nonetheless, the marriage was consummated.

Mrs SK bears no personal responsibility at all for the events which happened. There is no question whatsoever of her having personally exploited the mental disability of RG. She was an obedient daughter, in a Sikh family, who compliantly participated in the arrangements that her family made for her marriage. Having married him, she now feels committed to him, and, indeed, says that she does now love him. She says that it would be impossible in her culture and religion for her ever to marry anyone else, and that if she were divorced, or her marriage was annulled, she would be ostracised in her community.

  1. The issues that now remain in relation to RG relate to the status and continuation of that marriage. It is accepted by Mrs SK that she cannot provide to RG the support and daily care and assistance that he needs, and always will need, and she no longer resists that he remains living in the accommodation provided and staffed by the local authority. She implores me, however, not to facilitate or permit steps to be taken to annul their marriage.
  1. At the outset of the hearing Mrs SK was also still asking to be permitted to have some sexual relationship with her husband, the more so as it would be culturally impossible, now, for her to do so with any other man. The evidence of Dr Xenitidis was, however, crystal clear that RG has no understanding at all what sex is, and, accordingly, that he lacks any capacity to choose whether to agree to sexual touching. As Xenitidis put it: “He does not even understand what sex is. Whether it is voluntary, or not, is a kind of luxury for him.”

That would place SK in difficulties with the criminal law, and specifically section 30 of the Sexual Offences Act 2003, in that making love with her husband could potentially land her in prison, the maximum sentence being life.

Section 27(1)(b) of the Mental Capacity Act 2005 expressly provides that nothing in that Act permits a decision to be made on behalf of a person consenting to have sexual relations. Accordingly, if, as is clear, RG himself lacks any capacity to consent to sexual relations, the court cannot provide any consent on his behalf, even if (I stress if) that might enable him to gain some physical pleasure from some sexual activity.

 For these reasons the order will include a declaration that RG lacks capacity to consent to sexual relations. It will be the duty of the local authority, as his carers, to take all reasonable steps to prevent him from being the victim of a criminal act, and the regular contact between Mrs SK and RG will have to be supervised to the extent necessary to ensure that there is no sexual touching between them. Mrs SK now accepts a condition of contact that she does not communicate to RG that she would like to have sexual relations with him, or go to the bedroom with him.

Turning to the marriage, the Court unsurprisingly found in the light of the expert evidence on RG’s capacity that he had no understanding whatsoever of what a marriage was, that he had not had capacity to enter into the marriage contract.

The argument then, and it becomes an interesting one, is what should happen with the marriage. Underlining mine

  1. There remains, therefore, the question of whether I should declare that it is in the best interests of RG that the Official Solicitor should present a petition for a decree of nullity on his behalf, there being no doubt that RG personally lacks any capacity to make a decision whether to do so.
  1. The Court of Protection cannot itself annul a marriage. So in relation to a petition for nullity all I can do in the present proceedings is authorise, and, if necessary and appropriate, direct that the Official Solicitor presents and pursues one. For that purpose, the actual decision where RG was domiciled on the date of the marriage, would fall to be made, not by me in these proceedings, but by the matrimonial court, once seised with a petition for nullity.

It might well have been an interesting position for the Official Solicitor (who were, on RG’s behalf opposed to petitioning for nullity) if the Court had declared that it was in RG’s best interests for them to do so. Clearly they would have to have either done so, or appealed the declaration.  

The LA were very keen for the marriage to be ended, chiefly as a matter of public policy

I have been told that within the area of this particular local authority there are a number of incapacitated adults who have been the subject of arranged or forced marriages, and that it is important to send a strong signal to the Muslim and Sikh communities within their area (and, indeed, elsewhere) that arranged marriages, where one party is mentally incapacitated, simply will not be tolerated, and that the marriages will be annulled

 

 

  1. In the forefront of Miss Pratley’s submissions is policy. The position of the local authority is encapsulated in paragraphs 7 and 8 of her cogent, written, outline submissions dated 28 June 2013, where she wrote:

“7: It is plainly a relevant circumstance that RG lacked the capacity to enter into the marriage, and continues to lack that capacity. Indeed, his lack of capacity is a fact of such importance that it would be difficult to argue it is not the starting point (or, if not the starting point, a circumstance of very significant weight) in determining best interests. It is submitted on behalf of the local authority that it is an overarching and compelling consideration in the best interests analysis. Whilst it is not asserted that it could never be in a person’s best interests for the court to decide not to take steps to end their marriage in these circumstances, only in exceptional cases will such a conclusion be sustainable.

8: This is because the court would otherwise make a decision, the effect of which would be that RG remain married in circumstances where he lacked capacity to marry, on the basis of circumstances, such as RG’s wishes and feelings and the impact on RG if his marriage was brought to an end, with little or no weight given to the fact of his incapacity on the basis that he is already married. It is impossible to reconcile this with the fact that a court could never take such considerations into account in allowing RG to marry in the first place. This would undermine the legal foundation of the institution of marriage in England and Wales, where consent is a fundamental element of a legally unassailable and enduring marriage contract.”

 

 

SK pleaded vehemently that the marriage should not be annulled, that as a consequence of her religion and culture it would cause her shame and might cause her to be ostracised.

The Official Solicitor took the view that RG would not want to cause SK any harm or distress, and when the issue that SK might have to permanently leave the UK (as she would if the marriage were annulled) he reacted very badly against this, and thus it was in his best interests not to annul the marriage, notwithstanding that he had not had the capacity to enter into it.

  1. The present wishes and feelings of RG himself, so far as they can be ascertained, are quite clear. Although he has such little understanding of marriage that he lacked capacity to marry, he, nevertheless, frequently uses the words “wife”, and “marriage”, or “marry”, in relation to Mrs SK. She visits him regularly, several times a week. Although the visits are quite short, he reacts to them with pleasure and appears to gain pleasure from the visits and from the relationship.
  1. RG reacts badly to references to divorce. Mr Dipak Mohan, his key social worker, said that if RG is told that his marriage is at an end, he is likely to take it extremely badly. When his brother told him that Mrs SK might be deported, he reacted extremely badly and aggressively

The Judge determined that the Official Solicitor was correct

  1.  Unquestionably, RG cannot gain the support, pleasures and benefits of a marriage, as normally understood. He cannot gain many other of the pleasures of life that are available to persons of normal capacity. But still he gains some pleasure and some benefits from this marriage and relationship.

 

  1. Like the Official Solicitor, I am completely unpersuaded that his best interests require or justify that it is now annulled. For these reasons I will exclude from the otherwise agreed order in relation to RG those parts which provide for the Official Solicitor now to present a petition for the marriage to be annulled.

There was obviously a tension in this case between public policy (the compelling argument that marriages arranged by families overseas with the knowledge that the bride or groom lacked any capacity to enter into it should not result in the families benefiting from the marriage enduring)  and the individuals in the case, with there being good evidence that RG would have been caused distress by the annulment – since SK would have had to leave the country and little evidence of positive benefit to him. The Judge found in favour of the individual rather than public policy.

Whilst the Judge was at pains to point out at the outset that the case turned on its facts and that he was not seeking to establish any general principles, it is not difficult to see that those acting in such cases in the future would point to the issues in this case as being broadly supportive of the marriage not being annulled on the basis of public policy alone, and that there would have to be benefits to the individual concerned.

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