A step too far?

We can trace the origins of a distinct body resembling the Court of Protection back to the mid 1800s and the appointment of commissioners in lunacy. The court has evolved immeasurably since that time, but its mandate remains the same, to oversee the affairs of those who lack the capacity to do so themselves.

Inherent failure

Before the commencement of the Mental Capacity Act 2005, the Court of Protection only had the jurisdiction to make decisions about a person’s property or financial affairs and this limitation was its downfall. The only way in which welfare issues could be heard was through the High Court or on appeal and this was only available for those with the means to fund such applications, usually health authorities.

In a society that focuses on justice and equality for all, it was an inherent failure in our legal system that there was no easily accessible medium for welfare decisions to be made on behalf of the vulnerable.

The Mental Capacity Act 2005 was introduced to transform the decision-making process. It was intended as an all-encompassing piece of legislation, covering not only the legal definitions relating to capacity, but the core principles that are the building blocks for each decision.

The Act focuses on the individual’s capacity in relation to a specific act. It recognises that a person can lack capacity in relation to a certain matter at a certain time, but capacity or the lack of it is not a fixed label; it is a fluid concept with the potential for change.

The Court of Protection has been established as a superior court of record and is developing its own body of precedents. Recently, the court has come under scrutiny in the media and questions have been raised about whether it has gone a step too far.

In the case of A local authority v H [2012] EWHC 49 (COP) the court was called upon to consider whether or not H had the capacity to consent to sexual relations. H was a 29-year-old woman with atypical autism and mild learning difficulties. After considerable deliberation on the particular facts of this case, it was decided that H did not have the capacity to consent.

The implications are far reaching; H is unable to marry so long as marriage requires sexual intercourse for its consummation and both liberty and autonomy may be compromised as H is now subject to constant one-on-one supervision, to protect her.

Imperfect science

The imperfections of the law in this area were recognised by the court itself; Mr Justice Hedley highlighted this in his judgment where he described his decision as a “best interests’ judgment”. It needed to balance the protective function of the court with the personal autonomy of the individual. The order also incorporated the notion that this decision was not meant to stand forever. In fact Hedley J stated that he will review the judgment in November of this year, following the local authority’s capacity and best interests review.

D Borough Council v AB [2011] EWCH 101 (COP) was an earlier case brought before the court by a local authority who sought the court’s declaration that a man in their care did not have the requisite capacity to consent to sexual relations. The man, who was in his early 40s, and was placed with the local authority on a permanent basis under close supervision, was referred to as having “moderate” learning difficulties.

The judge considered a number of factors to determine whether the man did or did not have the necessary capacity to consent to sexual relations and made a declaration that he did not.

What is common in both cases is the extremely difficult path the courts are being asked to tread to reach a decision and the need to review those decisions over time. Through case law, the court has been trying to develop a test to determine capacity to consent to sexual relations.

This ‘test’ has varied from judgment to judgment and it is still lacking any real clarity. There have now been calls for the Court of Appeal to take a head on approach and address the issue. It is hoped that this will give firm guidance to the Court of Protection and help to lift the legal fog that has surrounded the area.

Learning process

Questions have been raised about whether the court could have handled either of these cases in any other way. In the judgments, the need for ongoing sexual education was highlighted, with the hope that it would assist the people concerned to reach a level of understanding enabling them to acquire the requisite mental capacity in the future.

In many of the cases, the problem lies with P’s lack of understanding about the implications of his/her actions. If we could provide more by way of learning facilities in the area of sexual education and contraception, then it that some of those that come before the Court of Protection may gain capacity to make their own decisions.

But education takes time. On the facts of the above cases it was an immediate problem that needed an immediate solution. The implications of the court standing back and doing nothing are perhaps far, far worse. If the media portrayed these cases as having being made in the best interests of P, made as a last resort to protect P from exploitation, then maybe the court would be receiving less scrutiny.

We must remember that it is only the extremely vulnerable that are the subject of these decisions.

The court is dealing with highly controversial issues in the only way it can. All of its judgments are firmly based in the best interests of the person to whom they relate and they are being looked at on a case-by-case basis. More generally, Charles J has stated (in A local authority v PB [2011] EWHC 502 (COP)) that to avoid the court having to make what he describes as “voyages of discovery”, when welfare matters are brought before the court, the parties involved should serve a document on all other parties.

This should set out the facts that the court will be asked to consider, the disputed facts, the issues that don’t need to be determined and the findings the court are being asked to make, together with details of investigations that have already been made, the remedies that are being sought and all the relevant law. This may then free the court to focus on the most important issue, being how best to protect the individual.

Let it not be forgotten that the jurisdiction of the court to deal with welfare matters is still relatively new, it deals with highly emotive issues and so consideration and debate are always going to follow.

Natalie Lewis is a trainee solicitor at Farleys

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