A year in the life
Victoria Butler-Cole and Josephine Norris consider five key judgments of the Court of Protection in 2011
The Court of Protection has generated a steady stream of case law dealing with the many and varied elements of the Mental Capacity Act 2005. Here we look back over the past year and highlight five of the most interesting cases decided in 2011.
The first three cases concern deprivation of liberty. The MCA contains detailed provisions concerning the circumstances in which it may be lawful to deprive an incapacitated person of his or her liberty for the purposes of article 5 ECHR. Schedule A1 of the Act sets out a self-contained scheme for the authorisation of deprivations of liberty by local authorities and primary care trusts. The Court of Protection is able to review authorisations granted by statutory bodies and will determine the lawfulness of deprivations of liberty that occur outside of hospitals and care homes. Perhaps the most difficult aspect of this part of the statute is understanding what amounts to a deprivation of liberty. No comprehensive definition has been attempted in the Act or the two codes of practice and it is widely recognised that we are far from achieving a consensus on the question.
In P and Q v Surrey County Council; (Re MIG and MEG)  EWCA Civ 190, the Court of Appeal considered the case of two sisters aged 18 and 19. P had a moderate to severe learning disability and found it difficult to communicate. ?Q had better cognitive functioning ?but exhibited challenging behaviours. ?P lived with a foster family where she had her own bedroom. The house was not locked, although, if P had tried to leave on her own, her foster mother would have restrained her. P attended college each day and went out on trips and holidays.
Q was living in a small residential placement that did not qualify as a care home. She had her own bedroom and was not locked in, but was always accompanied when she left. She attended college. She sometimes required physical restraint when she attacked other residents and required continuous supervision and control (to meet her care needs). She was in receipt of medication for controlling her anxiety.
The Court of Appeal decided, contrary to the submissions of the Official Solicitor on behalf of P and Q, that neither was objectively deprived of their liberty. In reaching this conclusion, the Court of Appeal relied in particular on two factors: that P and Q did not object to their circumstances and, while it would be wrong to attach significance to the fact that restrictions were imposed in a person’s best interests, the extent to which a person is in a ‘normal environment’ with social contacts is a relevant consideration.
In Re RK  EWHC 3355 (COP) (Fam) the High Court considered the case of a 17½-year-old woman who suffered from autism, ADHD, severe learning disability and epilepsy. She displayed aggressive and self-harming behaviours. RK was cared for by the local authority under section 20 of the Children Act 1989. She attended school and returned to her parents’ home at ?the weekend.
While at the placement, she was allowed unrestricted contact with her parents. She was subject to close supervision at all times, but was apparently not restrained. The door to the placement was not locked, although, if RK had tried to leave, she would have been brought back.
The issue for the court was whether RK was deprived of her liberty in the care home placements. If she was, then, being under 18, the DOLS regime would not apply and the local authority would have to apply to the court for declarations authorising the placement. It was held that there was no deprivation of liberty, either in law or on the facts, on the basis that there could be no deprivation of liberty where a child is in the care of the local authority and the parents have consented to the placement and that, in any event, RK’s care did not come “remotely close” to depriving her of her liberty.
If RK’s parents had decided not to remove her from the placement, the judge found it difficult to see how the state could be said to be responsible for her detention. Permission to appeal this decision was granted.
The case was heard in the Court of Appeal in December (RK v BCC and others  EWCA Civ 1305) and the appeal was dismissed. While the Court did not support the judge’s reasoning, it was ruled that there was no deprivation of liberty.
In Cheshire West and Chester Council v P and M  EWHC 1330 (Fam), however, there was a deprivation of liberty. P had one-to-one supervision during waking hours and every aspect of his life was monitored and supervised. He was unable to leave his placement unescorted, and aspects of his challenging behaviour required interventions, including physical restraint and forcible removal of items from his mouth by two staff members. In the community, he was often restrained in a wheelchair by a strap. Again, permission to appeal this decision was granted.
The Court of Appeal in November  EWCA Civ 1257 upheld the appeal by the local authority. The full judgment is outside of the scope of this article, but the decision is widely considered a landmark ruling on what constitutes a deprivation of liberty.
The test for capacity to consent to sexual relations is one that raises strong feelings among many people. Before the MCA came into force, there had been a small number of cases decided under the inherent jurisdiction, which held that there was a low threshold for capacity in this area and that the test was act-specific not person-specific.
The correctness of this approach was queried by Baroness Hale in R v Cooper  UKHL 42, who said: “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.”
However, in the High Court the act-specific approach continues to be applied. In D Borough Council v AB  EWHC 101 (COP), it was held that the only relevant information that must be understood to have capacity to consent to sexual relations is the mechanics of the act, that there are health risks involved, particularly the acquisition of sexually transmitted and sexually transmissible infections, and that sex between a man and a woman may result in the woman becoming pregnant. It is not necessary to understand that sex is legal only between adults aged over 16, or that both parties need to consent to it, nor that sex is part of having relationships with people and may have wider emotional consequences.
Another highly emotive issue is the withdrawal of life-sustaining treatment. The Court of Protection made headlines in September 2011 with the case of W v M & Ors  EWHC 2443 (COP), which concerned an application for the withdrawal of artificial nutrition and hydration from a patient who was not in a vegetative state, but a minimally conscious state. The patient’s family gave evidence that, after eight years with only intermittent awareness of her self and the environment and with no ability to communicate functionally and almost no prospect of recovery, it was in the patient’s best interests for ANH to be withdrawn to allow her to die with dignity.
This was the first time such an application had been brought before the courts in England. The family’s application was refused, because the fundamental principle that life should be preserved could not be outweighed by evidence of the patient’s likely views where there was no binding advance decision to rely on.
As the five cases in this article illustrate, the work of the Court of Protection is extremely varied, and, in some areas, there is still much uncertainty about the proper interpretation and application of the MCA. This year, we are likely to see yet more cases concerning the vexed question of deprivation of liberty, as well as further consideration of the tests for capacity to consent to sexual relations and marriage.
Victoria Butler-Cole and Josephine Norris are barristers at 39 Essex St