Court of Protection Newsletter #1403.10.19
Welcome to the August issue of Spire Barristers’ Public Law Newsletter covering news from around the web, practice updates and case reviews in Court of Protection and Public Law matters.
Edited by Jacqueline Thomas and written by Aaqib Javed.
Thanks for reading.
Policy and Consultations
The Civil Justice Council has published a document setting out proposals for reform of the procedural rules in civil matters in relation to vulnerable witnesses and parties. The Consultation ends on the 11 October 2019.
D (A Child)  UKSC 42
Overturning Sir James Munby’s decision in the Court of Appeal, the Supreme Court confirmed that legal authorisation must be sought in cases where 16- or 17-year olds lack the capacity to consent to deprivation of their liberty; parental consent alone would be insufficient.
The court was asked if it is “within the scope of parental responsibility to consent to living arrangements for a 16 or 17-year-old child which would otherwise amount to a deprivation of liberty within the meaning of article 5?” Article 5 of the Human Rights Act affords the right to liberty and security to individuals.
Though appreciative of the general rule that parental responsibility allowed parents (or others with PR) to make decisions on behalf of children Lady Hale maintained that there were limits to this proposition especially when the child was 16 or 17 years of age. Parental responsibility could not substitute consent nor did it eliminate the need for a deprivation of liberty order. Her Ladyship also reiterated that depriving a child of their liberty was a violation of one of the “most fundamental human rights.”
The court did not make any conclusions with respect to children under the age of 16. The current position, which is that parental agreement can lead to the lawful deprivation of a child’s liberty concerning under-16s, remains good law. However, LAs may wish to review and potentially seek legal authorisation in cases where 16- or 17-year olds reside in foster or residential placements under parental agreement.
The impact of this judgment is lessened somewhat by the introduction of the Mental Capacity (Amendment) Act 2019. This Act, which comes into force in October 2020, replaces the current Deprivation of Liberty Safeguards (DoLs) scheme with the Liberty Protection Safeguards (LPS). The new safeguards will offer a more streamlined process whilst also explicitly applying to all those over the age of 16.
Redcar & Cleveland Borough Council v PR & Ors  EWHC 2305 (Fam)
PR was a 32-year-old woman who became vulnerable due to a deterioration of her mental health. She was treated at a hospital voluntarily. However, during this time, she made allegations against SR (her father) whom she lived with. The LA, concerned about her welfare, sought protective orders at an interim hearing under the High Court’s inherent jurisdiction.
The LA did not inform PR of the proceedings and the orders were made without notice. By the time the matter came before the courts again, PR had decided she did not wish to return to live with her parents and a contact plan had been drawn up between all the parties. They also all agreed that inherent jurisdiction should now be discharged. This hearing concerned whether the court should have exercised the inherent jurisdiction in relation to PR at all, and if so, whether it should have made the orders that it did at the interim hearing
Cobb J wished to clarify proceedings by addressing the following questions:
“i) Was it right for the court to use its inherent jurisdiction in these circumstances to make orders in relation to PR?
If so …
ii) Was it right for the court to make injunctive orders against PR herself to prevent her from having contact with her parents?
iii) Could or should the inherent jurisdiction have been used to make orders which would have the effect of depriving PR of her liberty (if indeed she was so deprived)?
iv) Was/is there a proper basis for withholding disclosure of evidence and/or information which has been filed by the applicant from the second and third respondents, SR and TR?”
With respect to the first and third issues, the judge found that the judge at first instance, HHJ Hallam, was justified in extending inherent jurisdiction to protect PR. More time was needed to assess PR’s situation including making further enquiries into mental health difficulties. By the time the matter came before Cobb J, the social worker stated to the court that she is “firmly” of the view that PR now has the capacity “to make decisions about all aspects of her life”. Further, the court was not satisfied that PR had been deprived of her liberty. The court heard evidence that PR acquiesced in moving to LA accommodation and had settled there with relative ease.
Cobb J addressed the second question by making clear that prohibitive orders compelling action/inaction on the part of PR should not have been made. The evidence presented to HHJ Hallam showed that PR would have been unable to make an informed decision at the time the order was made. He set out the following test when making prohibitive orders:
“i) whether X (in this case PR) is likely to understand the purpose of the injunction;
ii) will receive knowledge of the injunction; and
iii) will appreciate the effect of breach of that injunction.
If the answer to any of these questions is in the negative, the injunction is likely to be ineffectual, and should not be applied for or granted as no consequences can truly flow from the breach.”
These remarks offer welcome guidance to LAs looking to use the facilitative powers of inherent jurisdiction in cases with an inter-family element especially when existing legislation (such as the Family Law Act 1996) do not satisfactorily ensure a wide enough scope of protection.
The judge did not answer the document disclosure question as there was to be no further involvement of the court. Had the court addressed this point, it would have had to balance the importance of PR participating in therapeutic activities and the parents’ need “to see relevant documents in order to able to participate effectively and fairly in the proceedings so far as they relate to them.”
JB (Capacity: Consent To Sexual Relations And Contact With Others)  EWCOP 39
This case concerned JB, a 36-year-old male with complex autistic and cognitive issues, who had been living in a supported residential placement. This involved a comprehensive care plan being imposed upon JB that restricted his access to the local community, social media, and third parties. Despite JB not being involved with the criminal justice system, the Local Authority (LA) felt that he might exhibit sexually inappropriate behaviour due to his cognitive impairment. JB believed that the restrictions prohibited him from exercising his Article 8 rights (private and family life). The question before the court was does the “information relevant to the decision” within section 3(1) of the Mental Capacity Act 2005 include the fact that the other person engaged in sexual activity must be able to, and does in fact, from their words and conduct, consent to such activity ?
JB, who was represented by the Official Solicitor, argued that the “approach adopted by the local authority in relation to an expanded test for capacity to consent to sexual relations amounts to an impermissible attempt” to prohibit him from exercising his rights and that it risked discriminating against vulnerable adults.
The judge began by looking at the legal framework set out in London Borough of Tower Hamlets v NB (consent to sex)  EWCOP 27 (16 July 2019) which has been summarised in the previous edition of this newsletter. The judge distinguished this case from the case of NB by making it clear that the women JB may engage with remained unidentified and that the current case concerned matters of a more protective nature that pre-emptively attempted to protect potential victims of sexual assault. JB’s position was that the law required “that he…has a clear understanding of his…own choice whether or not to take part in sexual activity, not that such understanding must extend to a parallel choice to be made by his or her intended partner.”
A single joint expert had found that JB could consent to sexual relations despite his inability to understand or weigh “highly pertinent factors in ensuring he engages in lawful sexual activity.” Another psychologist concluded that JB posed a moderate risk of sexual offending towards women that would most likely manifest itself in the form of harassment through repeated and unwanted sexually explicit messages. The LA argued that by not covering this issue under s3 (1) MCA 2005, JB could be deprived of the protection of the law (rather than from it).
The court found in JB’s favour and made clear that “the fundamental capacity of an individual in relation to sexual relations…does not include information that, absent consent of a sexual partner, attempting sexual relations with another person is liable to breach the criminal law.” The court stated that the “relevant decision must focus on JB’s capacity in relation to the support he will obviously need in relation to his future relationship(s) with women whether these are short-term or, as he himself hopes, longer term relationships.”
London Borough of Croydon v KR & Anor  EWHC 2498 (Fam)
The LA had made an application for an injunction under the court’s inherent jurisdiction that would have prevented KR from living together with ST. At the time, KR and ST had been married for around 40 years and had raised two children together. Both KR and ST had capacity but were deemed to have vulnerabilities. KR’’s condition left him immobile and physically vulnerable. ST had vulnerabilities connected to mental health difficulties and alcohol abuse. Although the LA withdrew proceedings on the 2nd day of the trial, Lieven J thought it proper to clarify the necessary principles surrounding an application of this nature by handing down a full judgment.
The court accepted that the LA had very real concerns that KR was vulnerable and had suffered from domestic violence as a result of living with ST. The court also heard that ST was preventing carers from engaging fully with KR. Although KR was provided with visits from carers 3 times a day, there were concerns that ST was not allowing access to the carers on all occasions.
Lieven J made clear that the inherent jurisdiction to make such orders existed to cover gaps in the law where an individual needed the protection of the court. Previous cases concerning similar matters extended the inherent jurisdiction in circumstances where a vulnerable person was “subject to coercion or undue influence”. The LA felt that KR’s circumstances qualified him for this protection. KR, living way from ST at the time the application was made, did not agree with the LA. He maintained that he might place “more importance or weight on ST’s wishes and feelings but I think this is only normal, as she is my wife. I want to have the choice to live my life as I want”.
Lieven J expressed that the inherent jurisdiction did not exist to prevent KR, a man with capacity, the ability to make an unwise decision. The conclusion drawn by the court was that the evidence put before the judge did not support a conclusion that KR remained under the undue influence of ST to a degree that would justify the use of the inherent jurisdiction.
Lieven J also found that KR’s article 8 rights had been engaged. Article 8 (2) of the Human Rights Act stresses the restrictive nature of interfering with these rights. He concluded that no order should be made even had inherent jurisdiction been made out. The reason for this is because the LA had the opportunity to use less intrusive means to satisfy their concerns surrounding KR’’s wellbeing. For example, the LA could have provided KR with a mobile phone that would have allowed him to contact his carers in the event that ST was not minded to facilitate this communication. The LA could have provided KR and ST with accommodation that is more suitable and one that would have met the couple’s needs; however, they did not pursue this option. Finally, the concerns expressed by the LA were not so acute that KR’s life was at risk if he were to return to live with ST.
The judge had been careful in distinguishing between “natural and common” family influences and undue influence or coercion. Preventing a married couple from living together and against their wishes would be a “colossal” and unjustifiable interference in KR’s right to a private and family life. Lieven J concluded that the order sought would not have been necessary or proportionate.
Wakefield Metropolitan District Council & Anor v DN & Anor  EWHC 2306 (Fam)
DN was an autistic 25-year-old man who suffered from anxiety and unstable personality disorders. However, he was not incapacitous and retained the ability to make decisions. DN was convicted of a public order offence and was sentenced to a 2-year mental health treatment requirement as set out in s.207 of the Criminal Justice Act 2003 (‘CJA’). A placement at Stamford House (‘SH’) was identified and tailored to meet DN’s needs.
The Applicants believed that a 2-year stay at SH would deprive DN of liberty and that DN was unable to give that consent. An order was sought at court that would extend inherent jurisdiction to regulate DN’s placement under a legal framework as DN did not benefit from protections found in the Mental Capacity Act 2005 (‘MCA’). The questions that Cobb J had to answer were whether DN was a ‘vulnerable’ person for who fell under inherent jurisdiction and if so, could the court make an order facilitating DN’s stay at SH?
The Applicants felt that SH was a place where DN could receive direct and tailored care. They also argued that under s.207 of the CJA, DN must express willingness to comply with such a requirement. The Applicants maintained that DN could not voluntarily consent to stay at SH as the alternative was likely to be imprisonment. The Respondents did not favour a finding of inherent jurisdiction being made as DN’s decision to go to SH was always free and unencumbered. The Respondents encouraged the court to conclude that it would be right to respect DN’s autonomous decision-making and that DN should be able to negotiate the terms of his stay at SH in a consensual manner.
Both parties proposed that the court make anticipatory orders under the MCA for when DN has ‘meltdowns’ leading to a loss of capacity. This would allow the Applicants to deprive DN of his liberty temporarily. The judge made it clear that although this was theoretically possible it remained difficult to implement in practice.
The judge found that, although DN had vulnerabilities, his impairment was not so severe as to allow inherent jurisdiction to be extended in this situation; he was not of “unsound mind.” The judge highlighted the usefulness of expert evidence when making this assessment. In DN’s case, his decision-making skills were deemed not to have become overborne by his circumstances; deciding between a placement at SH and a potential prison sentence was a “stark choice” but not one that disabled him from “making an informed choice.”
Cobb J made it clear that DN would have to reach consensus with SH with respect to the structure of his mental health treatment. Any breaches would be dealt with under the usual provisions found in the CJA. Cobb J did make the anticipatory orders that had been requested by all parties despite the court’s earlier apprehension at the practical applicability of such orders.