RSS Feed

Tag Archives: mental capacity

Being a deputy is not a licence to loot

A Court of Protection case has recently tackled the issue of a person with considerable financial means but no capacity to manage her affairs, and the deputies appointed by the Court having made extensive ‘gifts’ from her financial estate and seeking retrospective approval for them.

MJ and JM v The Public Guardian 2013

http://www.bailii.org/ew/cases/EWHC/COP/2013/2966.html

This was the background to the appointment of MJ and JM as deputies

 

9.       GM has vascular dementia, which was first formally diagnosed in 2007.

10.   On 25 August 2010 the court made an order appointing MJ and JM jointly and severally to be her deputies for property and affairs.

11.   The order required the deputies to obtain and maintain security in the sum of £275,000. The premium for the security bond, which is payable from GM’s estate, is £550 a year, and the purpose of the bond is to restore to GM’s estate any loss that may have arisen as a result of the wrongful acts or omissions of her deputies.

12.   Paragraph 2(c) of the order gave the deputies the following authority to make gifts:

“The deputies may jointly and severally (without obtaining any further authority from the court) dispose of money or property of GM by way of gift to any charity to which she made or might have been expected to make gifts and on customary occasions to persons who are related to or connected with her, provided that the value of each such gift is not unreasonable having regard to all the circumstances and, in particular, the size of her estate.”

The case sets out very clearly the parameters in which deputies can operate, particularly with regard to ‘gifts’  and ‘deputyship expenses’

  1. The scope of a deputy’s authority to make gifts
  1. Section 16(2)(b) of the Mental Capacity Act 2005 provides that the court may appoint a deputy to make decisions on behalf of ‘P’, which is the shorthand term used in the Act for the person who lacks capacity or to whom the proceedings relate.
  1. Section 16(3) states that the powers of the court under section 16 are subject to the provisions of the Mental Capacity Act 2005 and, in particular, sections 1 (the principles) and 4 (best interests).
  1. Section 16(4) provides that the court may “confer on a deputy such powers or impose on him such duties, as it thinks necessary or expedient for giving effect to, or otherwise in connection with, an order or appointment made by it under subsection (2).”
  1. Section 18(1)(b) provides that the powers of the court under section 16 extend to making a gift or other disposition of P’s property.
  1. Paragraph 2(c) of the order of 25 August 2010 appointing JM and MJ as GM’s deputies defined the scope of their authority to make gifts in the following terms:

“The deputies may jointly and severally (without obtaining any further authority from the court) dispose of money or property of GM by way of gift to any charity to which she made or might have been expected to make gifts and on customary occasions to persons who are related to or connected with her, provided that the value of each such gift is not unreasonable having regard to all the circumstances and, in particular, the size of her estate.”

  1. Similar wording appears in almost every order appointing a deputy for property and affairs, and the intention of the court is that deputies should have the same powers to make gifts as attorneys acting under an Enduring Power of Attorney (‘EPA’) or a Lasting Power of Attorney (‘LPA’).
  1. It is important that deputies and attorneys should:

(a) realise that they have only a very limited authority to make gifts;

(b) understand why their authority is limited; and

(c) be aware that, in an appropriate case, they may apply to the Court of Protection for more extensive gift-making powers

  1. Deputyship expenses
  1. Section 19(7) of the Mental Capacity Act 2005 provides that:

“The deputy is entitled –

(a) to be reimbursed out of P’s property and affairs for his reasonable expenses in discharging his functions, and

(b) if the court so directs when appointing him, to remuneration out of P’s property for discharging them.”

  1. The Act distinguishes between two kinds of entitlement: the reimbursement of expenses, on the one hand, and remuneration, on the other. A deputy is entitled, as of right, to be reimbursed for the expenditure he incurs in carrying out his functions, though a ‘reasonableness test’ arises as to the amount he can actually recover.
  1. The Office of the Public Guardian publishes a booklet called A guide for Deputies appointed by the Court of Protection (OPG510), which is available in both hard copy and on the OPG website. Page 22 of this guide states as follows:

“Will I be reimbursed for my expenses?

The Act allows you to be reimbursed for reasonable expenses incurred when acting as a Deputy. Examples of expenses include telephone calls, travel and postage.

Expenses are not payment for your time spent while acting as a Deputy – this is called remuneration and can only be claimed if the Court order specifically states it. If you wish to receive remuneration you should ask the Court to consider this in your initial application.

 

The expenses you are entitled to claim and what is considered reasonable will vary according to the circumstances of each case. It depends on what you are required to do and also the value of the estate of the person who lacks capacity.

The OPG expects that you will only claim reasonable and legitimate expenses. If you claim more than £500 in expenses per year the OPG may require you to explain your expenses in detail and frequently.

If your expenses are considered unreasonable you may be asked to repay them, and in extreme cases the OPG may apply to the Court to cancel your appointment.”

So, in this case, what sort of “expenses” had been claimed?

£46,552.24 for ‘cars and computers’

Flick back – acceptable expenses £500 a year, and they went for nearly £50,000, out by several orders of magnitude.

It is no surprise that the Court considered that these were not ‘expenses’ at all, but the deputies making unauthorised gifts to themselves, and thus decided that they were obliged to refund GM’s estate with the money.

Let’s look at the gifts now

MJ personally had received ‘gifts’ from GM’s funds totalling £55,856  – including an £18,000 Rolex watch, a £16,000 ring, perfume, an Alexander McQueen handbag and £20,000 in cash.

JM personally had received ‘gifts’ from GM’s funds totalling £48,396.50, including a £17,000 Omega watch, two rings costing over £11,000, 2 Mulberry handbags and £20,000 in cash.

These were, of course, people who had been appointed by the Court to safely manage the estate of a very vulnerable woman and who had sworn an oath to do so properly.  I don’t think that I can actually find the words to describe how loathsome I consider their conduct to be, and I am amazed that the Judge was able to be as circumspect as she was.

They also made gifts of £62,500 to other friends and family members, all of whom seem to receive a Vivienne Westwood handbag, apart from one man who received a DerbyCounty season ticket.

GM had not been consulted about any of these ‘gifts’, nor had her wishes been explored by MJ and JM in any way.

  1. The Public Guardian’s position is that the deputies have made unauthorised gifts totalling £171,407.50 from GM’s estate to themselves and their immediate family.

The Public Guardian believes that this level of gifting by the deputies is excessive, not in the best interests of GM and is inconsistent with the deputies’ fiduciary duty of care. In addition, the deputies have exceeded the authority given to them to act on GM’s behalf in respect of her property and affairs and have exposed themselves to allegations of self-dealing.

In addition, the Public Guardian also questions if the deputies had the authority to spend a total of £46,553.14 in purchasing a car and computer each and then claim them as ‘deputyship expenses’. It is the Public Guardian’s opinion that the cars and computers are further unauthorised gifts which the deputies had no authority to make to themselves.

The Public Guardian has calculated that almost 44% of GM’s total assets have been disposed of by way of gifts made by the deputies to themselves and their family where they had no authority to do so. Therefore, the Public Guardian cannot recommend to the court that the gifts shown below can be approved retrospectively.

Detail

Amount

 

 

Gifted to immediate family

£67,155.00

Gifted to MJ

£55,856.00

Gifted to JM

£48,396.50

Deputy ‘expenses’

£46,553.14

Total

£217,960.64

Damn. Right

GM has £177,230.96 left in her estate

I don’t usually make comments about the individuals who appear in cases, over and above the judgments, but this particular case is making that rule of mine very hard to stick to. My opinion of these people, and it is merely a personal opinion based on the reading of the judgment, could not be much lower.

  1.  I do not accept that the gifts they made were in GM’s best interests. They are completely out of character with any gifts she made before the onset of dementia. There was no consultation with her before they were made and there was no attempt to permit and encourage her to participate in the decision-making process, or to ascertain her present wishes and feelings.
  1. Nor do I accept the applicants’ argument that they believed that the order appointing them allowed them to make gifts on such an extensive scale. They should have been aware of the law regarding their role and responsibilities. Ignorance is no excuse.
  1. The fact that GM’s remaining assets were in the names of one or other of the applicants, rather than in GM’s name, is a further example of what is, at best, ignorance, and, at worst, stealth.
  1. I realise that MJ and JM are the only visitors that GM receives, but this does not give them a licence to loot, and I was unimpressed by the veiled threat that, if the court were to remove them as deputies, they would find it difficult to continue seeing GM.
  1. If they had made a proper application for the prospective approval of gifts, I would possibly have allowed them to make gifts to themselves and their families to mitigate the incidence of IHT on GM’s death, but only if they had been the residuary beneficiaries under her will.

The applicants were seeking approval of gifts and expenses totalling £277,811.74. The approval of only £73,352 has left them personally liable to GM’s estate in the sum of £204,459.74, which they must pay back.

 

The Judge was then alive to the fact that GM did not have a will and that an application might be made for a statutory will, and that in doing so, JM and MJ might become the beneficiaries, allowing them to avoid repayment AND gain the remaining funds into the bargain.

  1. I shall not attempt to prejudge the outcome of any statutory will application, but, if an order is made for the execution of a will on GM’s behalf, there is a possibility that MJ and JM could become her residuary beneficiaries, in which case their liability to her estate may become less relevant.
  1. On the other hand, the judge who considers the statutory will application may take the view that, if she had testamentary capacity and was fully aware of what has been going on, GM would be outraged by the applicants’ conduct and would make no provision for them at all.
  1. Alternatively, the judge may find that GM’s intestate heirs have had closer contact with her than the applicants suggest, or that certain charities, such as the Christadelphian Church, the Scottish National Trust or the National Deaf Children’s Society, have a more meritorious claim on her bounty and should receive the lion’s share of her estate.

Applauding

And just for good measure, discharging them as deputies

  1. For the purposes of section 16(8) of the Mental Capacity Act, I am satisfied that the deputies have behaved in a way that contravened the authority conferred on them by the court and was not in GM’s best interests.
  1. I am not persuaded by any of Miss Bretherton’s submissions on their behalf, and I have no hesitation in revoking their appointment as deputies. GM’s finances are in disarray because of their conduct, and it is in her best interests that someone with experience of cases of unjust enrichment and restitution, such as a panel deputy, is appointed to manage her affairs in their place.

One of those cases where just reading it makes you want to take a long shower and despair about the ability of human beings to be craven and opportunistic.   Sadly there is nothing in the judgment about PC Plod being at the back of the Court with some handcuffs – I suppose one could make a case on obtaining by deception (since they would never have had the lawful access to GMs funds as a result of being appointed deputies if the Court had had any inkling that rather than looking after GM, they were simply going to enrich themselves at her expense)

 

Some days, I am afraid that I hope that the medieval world view of what happens after one dies is actually true.

Advertisements

Capacity and Vasectomy

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.

Inherently nothing, nothing inherently

A (hopefully short) discussion about the inherent jurisdiction, particularly as it applies to adults.

I wrote about the Court of Protection popping on the High Court hat to make use of the inherent jurisdiction to get around an otherwise impossible jam, in A NHS Trust v Dr A 2013 http://www.bailii.org/ew/cases/EWHC/COP/2013/2442.html and it got me pondering.

As a quick summary, the inherent jurisdiction is a creation of the common law, i.e it was decided in cases before the Court rather than laws enacted by Parliament or regulations or codes drawn up by Ministers.  It essentially provides for the High Court to use unspecified but wide-ranging powers to solve a problem that could not otherwise be achieved by use of statutory powers. In the case of Dr A, because Dr A was detained under the Mental Health Act AND lacked capacity, and the treatment that was considered desirable for him was not in relation to his mental illness but his physical wellbeing; the construction of the Mental Capacity Act prohibited the treatment being authorised by the Mental Capacity Act, and it was treatment that couldn’t be legitimately compelled without consent under the Mental Health Act.

 

The Court’s solution was to make use of the inherent jurisdiction – as we know from that case, had they not done so, the man would probably have died, and we also know that the man went on to make a good recovery and was happy not to have died. So it was the right thing to do. But it was, nonetheless, the High Court using broad and unspecified powers to achieve an outcome that was specifically prevented by legislation enacted by an elected Government. Yes, that legislation was probably a mess and it hadn’t been properly thought through, but nonetheless, the High Court did something that the statute had specifically prevented.

So, my question is – Is the Inherent Jurisdiction a useful and helpful tool to have to allow Judges dealing with difficult cases the necessary flexibility to arrive at what they consider to be the right outcome, or is it a method by which Judges can grant themselves powers that have never been specifically handed to them?  Are we accepting that in exposure to real life, statutory laws will always have stress points and flaws and sometimes break completely and it is helpful to have the judicial Polyfilla of the Inherent Jurisdiction to come to the rescue? Or do we consider that if the UK Parliament wanted to make it lawful for Judges to make orders to sterilise patients, to effectively continue Wardship on someone who was an adult, to determine whether a person could marry, to authorise surgery on conjoined twins against the wishes of parents who were competent, to regulate the relationship between vulnerable adults and their adult son, to decide whether a parent’s views about cancer treatment should be overriden for their child, or to authorise force-feeding, that this should be done through statutory laws?   (Those are all genuine cases involving the use of the inherent jurisdiction to make such orders, and some went on to lead to the introduction of statutory mechanisms to resolve these problems)

Of course, if the inherent jurisdiction hadn’t been there, then the Court could have ended up being unable to make the decisions and orders that were deemed to be in the person’s best interests – it would have been no good to any of those individuals that the Government in four or five years time would bring about some legislation on forced marriages, or persons lacking capacity. Don’t we WANT Judges to be able to make the right decisions – they are seized of the facts, they hear the arguments – we wouldn’t want them to have to make a decision that they felt was not right for the individuals concerned merely because the law hadn’t anticipated this set of circumstances and made provision for it?

On the other side, however, it worries me to an extent, firstly because we are now getting into territories where there IS existing legislation to make provision for these things. Both the Mental Capacity Act and the Mental Health Act have very long and detailed provisions for the circumstances in which treatment can be undertaken without consent. Dr A happened to fit within both pieces of legislation – he was detained under the Mental Health Act, and was determined to lack capacity to make decisions about the feeding treatment under the MCA.  Whilst I consider that the final decision that was taken was right, and in Dr A’s best interests, I can’t get away from a nagging feeling that all of those statutory provisions and requirements were sidestepped by a Judge simply deciding that “X should be done, and I will do it under the inherent jurisdiction”

We surely needed the Mental Health Act and Mental Capacity Act so that it was clear (or comparitively clear) under what circumstances the State could interfere with a person’s life and autonomy, what would be required before the State could do so, what the checks and balances would be, what rights the person would have.  All of that seems to me to get a little lost when a High Court Judge can simply decide that they have the power to achieve the outcome they desire?

In children cases, the use of the inherent jurisdiction is moulded into the statute – it says what it cannot be used for, and gives parameters in which the State can invite the Court to use those powers. In adult cases, it is not incorporated or limited.

Sentences like this, from McFarlane LJ  (who I believe to be a fair and just Judge) still make me shudder a little   “It would have been open to Parliament to include a similar provision, either permitting or restricting the use of the inherent jurisdiction in cases relating to the capacity to make decisions which are not within the MCA 2005. In the absence of any express provision, the clear implication is that if there are matters outside the statutory scheme to which the inherent jurisdiction applies then that jurisdiction continues to be available to continue to act as the ‘great safety net’ described by Lord Donaldson.”  DL V a Local Authority 2012  http://www.bailii.org/ew/cases/EWCA/Civ/2012/253.html

I don’t like the notion that Judges are able to consider that they have carte blanche with these powers unless Parliament expressly take them away.  Because another way of looking at it would be – that when you are deciding on compelling medical treatment for a person who doesn’t consent to it, you are looking at whether it can be authorised under either Mental Health Act, Mental Capacity Act or the doctrine of necessity, and that if it can’t, then it simply can’t be authorised.

Once you consider that in every case where the Court uses its Inherent Jurisdiction they are in effect making a decision that the State knows best and can impose a paternalistic decision upon people overriding their autonomy, it becomes something that is potentially concerning.  I say that not because I think any of the Judges who have used it have ever done so for reasons other than genuine belief that it was in the best interests of the individual; but because I firmly believe that people should have autonomy other than in circumstances specifically set out in statute law.  I would rather preserve Judges as the referee , as the person sifting the evidence, hearing the argument, being arbiters and determiners of whether the State has made out its case for taking decisions away from the individual under statutory powers;  and not stepping onto the pitch and taking part in the match itself.

Do I think that this principle is more important than a Court being able to solve an intransigent problem in an individual case?  That’s harder to say – faced with a life or death situation like Dr A and the statutory law as written meaning that the Court would be powerless to order the treatment which it had already decided was in Dr A’s best interests, it is hard to feel that they should be denied the chance to make the right decision. I perhaps feel that using the inherent jurisdiction to Polyfilla the cracks is ultimately less good for the individual than Judges being able to go back to Parliament and say “Look, you hadn’t envisaged this scenario – I have fixed it just this once, but what do you want Courts to do if it comes up again?@