Local Authority v TZ and NHS v M and K

Lynsey Colman sums up two new Court of Protection cases

TZ was born in 1992 and has mild learning difficulties, atypical autism and hyperactivity disorder. He formed a relationship with another man, A, in 2010. He alleged that A sexually assaulted him but no charges were brought against him. He moved into a home that offered him the support he needed and he remains happy living there.

In March 2011, Judge Susan Darwall-Smith ordered that it was in TZ's best interests to remain living at the home and for his contact with A to be restricted. She also directed that an expert psychiatrist be instructed to assess TZ's capacity. The local authority and the Official Solicitor agreed that TZ had the capacity to consent to sexual relations, but Dr X, the expert psychiatrist, was of the opposite opinion, so the case was brought before the Court of Protection.

Justice Baker set out the statutory provisions in the Mental Capacity Act 2005 about capacity and explained the "diagnostic test" of whether there is an impairment or disturbance in the functioning of the mind or brain and the "functional test" as to whether the impairment or disturbance affects the person's decision-making ability.

He also considered whether consent to sexual relations was "status or act specific" or "person specific" i.e. was the test whether a person has the capacity to consent to sexual relations in general or was it whether a person has the capacity to consent to sexual relations with a particular person.

Baker J looked at previous conflicting cases on this issue and held that capacity to consent to sexual relations is act-specific but did not rule out that proceedings may be brought where a decision has to be made about the act with a particular person. He said: "To require the issue of capacity to be considered in respect of every person with whom TZ contemplated sexual relations would not only be impracticable but would also constitute a great intrusion into his private life."

The judge also considered what level of understanding was required. He referred to Mostyn J's decision in D Borough Council v AB [2011] EWHC 101 (Fam): "…capacity to consent to sex… requires an understanding and awareness of: the mechanics of the act; that there are health risks involved, particularly the acquisition of sexually transmitted and sexually transmissible infections; that sex between a man and a woman may result in the woman becoming pregnant."

Baker J stated that in homosexual relationships, there was no need to understand that sex between a man and a woman may result in pregnancy.

All parties were agreed that TZ understood the mechanics of sex and the health risks, but Dr X believed that TZ did not have capacity because he would struggle to use and weigh up the relevant information when making his decision mainly because of his attention deficit hyperactivity disorder (ADHD) and autism, which make him more impulsive and abstract in his thinking. Dr X said that the decision involved "a complex analysis of risks and benefits often in the abstract and hypothetical".

Baker J found that this level of understanding was too high and that TZ did have the capacity to consent to sexual relations: "Like most people, he may behave impulsively at some point in the future, and, in his case, that tendency may be accentuated by his ADHD, but I do not consider this tendency means that he lacks the ability to use and weigh the relevant information."

This case highlights that the court is attempting to ensure that people make their own decisions when it comes to sexual relations by making the decision act-specific rather than person-specific. Baker J was also aware that if the test for capacity to consent to sex is set too high it will result in discrimination against people with mental impairment.

See A Local Authority v TZ [2013] EWHC 2322 (COP)

 

NHS v M and K

This Court of Protection case looks at the best interests of someone who lacks capacity in terms of end-of-life care and is a good demonstration of how medical opinion and the law can work together to resolve a very sensitive and difficult matter.

M, 23, who was born with holoprosencephaly, a congenital abnormality of the brain, is cared for by his aunt, K. He has cerebral palsy and severe learning difficulties, is confined to a wheelchair and is unable to communicate with anyone other than K. His health has deteriorated over the last three years. Between June 2010 and April 2013, he spent 79 out of 147 weeks in hospital.

Since 2010, he has had infections, temperature problems, renal stones removed and a duodenal extension put on his peg, which was inserted to enable direct feeding into his stomach. Eventually, total parietal nutrition was required.

In 2011, when his weight was unstable, he had to be put on a ventilator, off which doctors struggled to wean him. At the time of the hearing he was still in hospital but considered well enough to be discharged.

Until this point, M's family and medical team had worked together to make decisions about his treatment and care. But a difference of opinion about his care going forward resulted in an application to the Court of Protection.

The applicants, the NHS Trust and the Official Solicitor, believed it was in M's best interests not to be resuscitated or receive intensive care treatment, including mechanical ventilation, or to be given antibiotics if he had pneumonia. K agreed that he should not be resuscitated but felt that antibiotics to treat pneumonia would be appropriate.

Eleanor King J found there was no question that M lacked capacity to make decisions regarding his treatment and that he would not regain capacity in the future. She turned her focus to M's best interests and section 4 of the Mental Capacity Act 2005, which sets out guidance on how to make a decision in someone's best interests.

She also looked at the Mental Capacity Act code of practice, in particular paragraph 531, which states that if treatment is "futile" it may be in the best interests of a person not to give live-sustaining treatment.

She said that even though there is "a strong presumption in favour of preservation of life… such principle does not, however, displace the patient's best interests as the paramount consideration for the Court".

The case of Aintree University Hospital NHS Foundation Trust v David James and Others [2013] EWCA Civ 65 was referred to where Ward LJ said that the court had to look at more than the person's medical interests but also "emotional and all other welfare issues".

King J found that everyone agreed resuscitation would be "futile" in M's case, but other factors must be considered as well to determine his best interests. She took into account the fact that it could cause rib fractures, further brain damage and may result in mechanical ventilation along with

M's extensive disabilities and concluded that it was not in his best interests.

She turned her attention to the issue of intensive care treatment and confirmed that if M suffered from something that could be reversibly treated, he should be given the appropriate treatment. She found that if M's condition became terminal there would be no therapeutic benefit to provide ventilation, there would be no prospect of a cure, ventilation would be traumatic and it would be difficult to wean him from the ventilator.

Although she took into account K's wishes that he be "given a chance", it would not be in his best interests in these circumstances to give him intensive care treatment or antibiotics for pneumonia.

The case shows that the court has to look beyond whether life-sustaining treatment is "futile" and consider all the circumstances, such as therapeutic benefit, pain and suffering, and the wishes of the family and the person concerned.

See An NHS Foundation Trust v M and K [2013] EWHC 2402 (COP)

 

Lynsey Colman is an associate at Barlow Robbins

She writes regular Court of Protection case updates for Private Client Adviser