Court of Protection Newsletter #1305.08.19
In the news
Hackney Council found to have breached their Care Act duties in relation to a vulnerable woman who died of scabies-related complications – safeguarding adults review published.
Learning from tragedies – report published reveals a need for more awareness around the Mental Capacity Act in the context of self-neglect and alcohol misuse
Amendments made under The Court Fees (Miscellaneous Amendments) Order 2019 have reduced fees in the Court of Protection.
Hayden J clarifies approach when personal welfare deputies should be appointed- but code of practice remains unsatisfactory
Lawson, Mottram and Hopton (appointment of personal welfare deputies)  EWCOP 22
The Vice-President of the Court of Protection set out several principles which are designed to clarify when a personal welfare deputy (‘PWD’) should be appointed. In doing so, he made clear that the current MCA code of practice (‘the code’) does not satisfactorily address this issue.
The central question that was being asked by the three crowd-funded Applicants was “what is the correct approach to determining whether a welfare deputy should be appointed?”
Hayden J made it clear that the position when deciding whether to appoint a PWD must focus on empowering P (any person lacking capacity) and to promote his or her autonomy. He did so after consulting the Mental Capacity Act 2005, the code, and relevant case law. One key consideration that the Judge had to keep in mind was that paragraph 8.38 of the code suggested that a PWD should only be appointed in “the most difficult of cases.”
The “clear principles” that emerge demonstrate that “the starting point in evaluating any application for appointment of a PWD is by reference to the clear wording of the MCA 2005. Part 1 of the Act identifies a hierarchy of decision making in which the twin obligations both to protect P and promote his or her personal autonomy remain central throughout”. Hayden J stresses that although the 18th birthday leads to an altered legal status, which carries both rights and responsibilities, it is predicated on respect for autonomy. Importance is placed on mitigating the risk that the appointment of PWDs lead to an inhibition of personal development and may fail properly to nurture individual potential.
Hayden J makes it clear that his judicial discussion should not be interpreted as the statutory framework having a bias against the appointment of a PWD. He also stated that construct of an artificial impediment, in practice, to the appointment of a PWD would be a failure to properly understand the relevant provisions in MCA 2005. He concluded by explaining, “the Code of Practice is not a statute, it is an interpretive aid to the statutory framework, no more and no less. It is guidance which, whilst it will require important consideration, will never be determinative. The power remains in the statutory provision”.
In calling for a revision, Hayden J makes it clear that the code is wrong as it implies that the starting point is that PWDs should only be appointed in “the most difficult cases”. Instead, the appointment should be guided by the individual merits of the case and with particular focus on whether an appointment is in the best interests of P.
Hayden J did not decide on whether or not the three separate cases consolidated in this one case warranted the appointment of a PWD. The applications will have to be heard again in light of his clarifications.
Hayden J sets out the test for capacity to consent to sexual relations whilst highlighting the fragile relationship between the Court of Protection and the media
London Borough of Tower Hamlets v NB (consent to sex)  EWCOP 27 (16 July 2019)
This judgment builds on a case that was subject to intense media scrutiny following publication of comments made by Hayden J; further commentary as to the impact that this had in the media can be found at Medium.com – This most recent judgment, published in July, does not conclude whether the woman in question, NB, lacks the capacity to consent to sexual relations.
The case concerns NB and AU who have been a married couple since 1992. They have one daughter who was born in 1998. NB has been described by the court as having ‘general global learning difficulty’ For reasons that are important in understanding the issue of capacity relating to NB, it is important to detail that NB is beyond child-bearing age.
One of the more nuanced aspects of this case is whether the capacity question was issue- or act- specific. Essentially, courts will have to address whether the nature of the activity rather than the identity of the other party in question lends itself to determining capacity. NB, who is in a long-term marriage, will have a different set of needs and priorities when compared with someone who has not committed to one other person. These differences in individual characteristics ensure that this area of law can rarely take a universally prescriptive approach.
Hayden J observed that the “fundamental principle that the promotion of autonomous decision making is itself a facet of protection” and there is a clear danger of the Court taking an overly paternalistic view which limits NB’s autonomy He reasserted his view that “AU’s Article 8 rights are also engaged in this context. He too has a right to a sexual life where there is true consent and mutual desire”. This particular remark may be subject to further discussion from other commentators.
Hayden J also suggested that “whilst it is difficult to contemplate many heterosexual relationships where a failure to understand the risk of pregnancy or sexual disease (consequent upon sexual intercourse) will permit a conclusion that P has capacity, it should not be discounted automatically. This is to elevate the expert guidance beyond its legitimate remit”. The clear understanding is that it is the judge, not the expert, who must ultimately decide whether the person lacks capacity.
The Court of Appeal case B v A Local Authority  EWCA Civ 913 deals with a similar though not identical issue concerning capacity. The judgment in that case, combined with Hayden J’s remarks in the present case, indicate that the legal test of capacity to consent to sexual relations is based on the person’s ability to understand and consent to a specific issue rather than a particular person or event.
Interplay between MCA and MHA regimes in deprivation of liberty
Birmingham City Council v SR  EWCOP 28
This case concerned two local authorities making streamlined Re X COPDOL11 applications to deprive two individuals of their liberty. Interestingly, both respondents in this matter (SR and JTA) agreed with the local authorities’ course of action.
SR and JTA were about to be conditionally discharged from ss37/41 of the Mental Health Act 1983 (MHA). SR was identified as needing 1:1 supervision in the community and in order to prevent potential re-offending, needed to be monitored around women in public. JTA was deemed to lack capacity due to his learning disabilities and bipolar disorder.
There was no issue concerning SR and JTA’s lack of capacity to consent to the care arrangements that led to them being deprived of their liberty. However, the case of MM v Secretary of State for Justice  UKSC 60 posed the question of whether or not it would be lawful to authorise the deprivation of liberty under the Mental Capacity Act 2005 (MCA). In the Supreme Court case, it was stated that the conditions of a conditional discharge cannot deprive liberty by virtue of it being unlawful under the MHA.
The MM decision resulted in government guidance being issued which made a distinction between (a) those whose best interests require a care plan depriving liberty to help them perform daily living activities or self-care, and (b) those who deprivation of liberty is primarily to protect the public. The guidance, though not binding, suggested that the MCA be used in the former scenario and the MHA in the latter.
In this case, the court concluded that once a restricted patient was discharged, the Secretary of State or the First Tier Tribunal did not have power under MHA to impose a condition that would effectively amount to a deprivation of liberty.
Lieven J then considered the powers available to the Court, if any, under the MCA in respect of restricted patients. The discussion was focused on patients who do not have capacity (as was the case with SR and JTA) and who are now eligible for conditional discharge from hospital. Lieven J concluded that, in the absence of any inconsistency with the requirements under the MHA regime, a deprivation of liberty order could be made. Her Ladyship concluded that it was in the best interests of both individuals to be deprived of liberty in their respective placements.
Court of Appeal overturn Lieven J’s judgment attempts to tackle a myriad of sensitivities
Re AB (Termination)  EWCA Civ 1215 (Court of Appeal) (McCombe, King and Peter Jackson LLJ) and in the first instance: An NHS Foundation Trust v AB & Ors  EWCOP 26 (21 June 2019)
At first instance Lieven J found that AB (who was 22 weeks pregnant at the time) lacked the capacity to consent to the termination of her pregnancy. She also found that it was in AB’s best interests for a termination to take place.
This decision was overturned on the 24th of June 2019 at the Court of Appeal following an appeal made by AB’s adoptive parent (CD).
In the first instance, Lieven J considered the following matters as relevant factors when identifying AB’s best interests: medical risks; psychiatric risks; emotional/psychological risks from termination; emotional/psychological risks from having the baby; AB’s wishes and feelings.
A key finding, amongst others, was that AB would suffer less trauma as a result of terminating the pregnancy as opposed to having the child. This was made on the basis that AB would likely be involved in care proceedings and that if CD cared for AB’s child, AB herself would no longer be able to live with her mother (as a result of CD’s anti-abortion beliefs).
Lieven J also found that AB did not understand the birthing process and that there was a risk that AB merely saw a child synonymous with having a “nice doll”. The Judge concluded that she could not give AB’s wishes and feelings much weight.
On balance, Lieven J found that the harm from termination was outweighed by the harm from proceeding with the pregnancy.
The Court of Appeal judgment has now been published, referring to AB’s home circumstances that were described by King LJ as “complicated”.
The Court also made it clear that although s1 (1)(a) of the Abortion Act 1967 was engaged (that continuing the pregnancy involved a greater risk to the mental health of AB than if the pregnancy were to be terminated), it was not the case that the best interests of AB had to overlap with the medical assessment with respect to s1 (1)(a) of the above Act.
The Appeal was heard on three grounds. The first ground of appeal related to Lieven J’s finding that if AB gave birth to a child, it would be removed from her care by the local authority. King LJ found that Lieven J wrongly inferred that there was a real risk “that the baby would be placed with CD and that, as a consequence, AB would lose her home as well as her baby, a finding that erroneously impacted on the best interests analysis”.
The second ground of appeal was that the judge in the first instance had “erred in failing to carry out a detailed and careful balancing exercise in respect of whether termination or planned caesarean section were in AB’s best interests, having regard to the need for powerful evidence of risk to the mother’s life or grave risk to the mother’s long-term health of continued pregnancy.”
King LJ determined that: “The unenviable task facing the judge was, amongst all the other factors, to weigh up the psychiatric/psychological risks to AB of each of the two alternatives as presented to her by the doctors.
There was no express appreciation by the Court of Appeal that this ground had been made out but King LJ did remark that this complex task was reduced to a finding made by three medical professionals “on balance”.
The final ground of appeal was that “the judge erred in failing to have full regard to AB’s wishes and feelings and/or her Article 8 right to motherhood”. Although King LJ did not find that Lieven J made an “automatic discount” concerning AB’s feelings, she did find that the first instance judge had failed to take sufficient account of AB’s wishes and feelings in the ultimate balancing exercise. King LJ called this a “significant omission” irrespective of whether or not it would have been ultimately outweighed in the final balancing exercise. Interestingly, King LJ made it apparent that the views and insight of those who knew AB best (CD and AB’s social worker Ms. T) must be weighed up against the findings made by the psychiatrists and other medical professionals. In the first instance, Lieven J did not do this.
King LJ’s conclusion makes for powerful reading. In it, she makes it clear that “part of the underlying ethos of the Mental Capacity Act 2005 is that those making decisions for people who may be lacking capacity must respect and maximise that person’s individuality and autonomy to the greatest possible extent. In order to achieve this aim, a person’s wishes and feelings not only require consideration, but can be determinative, even if they lack capacity.”
The Appeal Judges found that the evidence taken as a whole “was simply not sufficient to justify the profound invasion of AB’s rights represented by the non-consensual termination of this advanced pregnancy.”