Update | Court of Protection: significant developments in healthcare treatment and welfare

The Court of Protection capped a busy few months when the DE decision attracted extensive media attention (see solicitorsjournal.com, 20 August 2013). While heralded as groundbreaking this was just one of a number of important decisions, particularly in cases of healthcare treatment and welfare.

In October the Supreme Court is due to hear the conjoined appeals in X and Y v Surrey CC and in Cheshire West CC v Ors, which provides an opportunity to determine the test that the courts should apply when considering if someone is deprived of their liberty in the context of adults with significant learning disabilities. And a House of Lords committee looking at how the Mental Capacity Act 2005 is working in practice is due to report in early 2014.

The case of A NHS Trust v DE [2013] EWHC 2565 (Fam) became the first case in which the court approved non-therapeutic sterilisation of a male. ?It has been hailed as a landmark ruling but was, in essence, a restatement of pre-existing principles and not a ruling which will open the floodgates to other, similar, claims.

Together the facts in DE provided an exceptionally strong case for treatment but in her ruling, Mrs Justice Eleanor King stressed any future case must pass the most stringent of tests around capacity, physical, psychological and emotional impact and quality of life.

In A Local Authority v K [2013] EWHC 242, the court had to determine whether it should make a declaration (in effect for the future) as to whether non-therapeutic sterilisation for a young woman with learning disabilities was in her best interests. By the final hearing all parties agreed that she should not undergo this process at present. The court had to decide whether it should make a binding declaration, or at least lay down a marker, for the future to avoid repeated assessments and best-interests decisions. It decided it was not in the young woman's best interests to undergo sterilisation now. This would be a disproportionate step to achieve contraception. Other more moderate options should be attempted. It was in her best interests, however, for the issue to be resolved (even though no-one was pressing for a declaration at that time).
The court stressed that practitioners must bring non-therapeutic sterilisation cases to court, rather than staff working on the ground making decisions particularly as the gynaecologist who had originally recommended sterilisation was unaware the case needed to be brought to court.
This is another timely reminder to medical practitioners, CCGs and others working with those who lack capacity that serious medical treatment issues require court authorisation before they can be undertaken.

Specific capacity

The case of (1) PC (2) NC v City of York [2013] EWCA Civ 478 dealt with a question of real difficulty to practitioners: is capacity person-specific or issue-specific?

The court considered whether someone with a learning disability who was married to the person, could resume cohabitation with her husband who had been convicted of serious sexual offences and who, the evidence stated, would or could pose a serious risk to her upon release on licence. The woman had married her husband some years before while he was in prison. She refused to accept he was guilty of any offences. Mr Justice Hedley, at first instance, found the test should be on the basis of whether she had capacity to cohabit/resume a relationship with the person concerned, not whether she had capacity to do so generally, finding that she lacked capacity to make such decisions.

She appealed stating that a decision around whether a wife should live with her husband should be act-specific and not person-specific, and that the judge was wrong to apply a different test. Further, the judge had failed to give proper weight to the fact that the parties had entered into a valid marriage some years before and there was no change in circumstances to question the validity of that marriage.

The Court of Appeal found that the act of capacity to marry is act-specific not person-specific. The capacity to marry is not capable of fluctuation depending upon the person one wishes to marry. On the capacity to enter into sexual relations, there was a divergence of judicial opinion as to whether capacity to consent to sexual relations was issue-specific rather than person-specific (a difference expressed between Lord Justice Munby in Local Authority X v MM [2007] EWHC 2003 and Baroness Hale in R v Cooper [2009] 1 WLR 1786 but did not make judicial comment upon it).

However, the court upheld Mr Justice Hedley's decision that resumption of cohabitation had person-specific connotations (as opposed to marriage) and the court should not determine whether a class of decisions is either act or person-specific save where the MCA 2005 asks it to do so (in the case of capacity to marry, as the court cannot make welfare decisions but simply identifies that there is such a lack of capacity).

The court can personalise the question of whether someone is to have contact with, or live with, a particular spouse, which may well be grounded in a specific factual context.
In deciding whether this woman should resume cohabitation with her husband the court had to consider information specifically relevant to that wife and that husband. It accepted that capacity to marry and to cohabit often involved very closely-related factors.

The Court of Appeal found, however, that the judge had failed to indicate why, if she had capacity to marry, she did not then have capacity to cohabit with her husband. It allowed that appeal. As the judge had found that she had capacity to marry, there needed to be clear and cogent reasons why she lacked capacity to perform the terms of the marriage contract, including cohabitation. The finding that she was unable to make that decision was not open to the judge and was not sustainable. The court emphasised that even though she may have had a mental impairment, and the general view was that her decision-making might be viewed by others as unwise, she had autonomy to do so given that she had capacity to marry. In doing so, the court emphasised the test of assessment of capacity is to: (a) evaluate whether someone has an inability to make a decision, and then (b) determine whether this is because of an impairment ?(not vice versa).

This case underscores the importance of decisions made under the MCA 2005 being fact-specific (absent specific direction from the MCA 2005 that they are not).

Capacity to marry

In Sandwell MBC v RG and Ors [2013] EWHC 2373 the court examined the issue of capacity to marry and whether the marriage should continue.

Here, a young adult with learning disabilities had been married to a woman (who had capacity to marry). The woman concerned was not aware of the extent of his disabilities when she married him. She was now committed to him, loved him and wanted to remain his wife, despite stating that her life had been "ruined" by the arranged marriage. She implored the court not to end the marriage. It would be impossible in her culture and religion for her to marry anyone else. If she was divorced or the marriage annulled, she would be ostracised in her own community. Also, she loved him.

The court found that the man concerned lacked capacity to consent to sexual relations, so his wife having sex with him would be a serious criminal offence. Given this, the court ordered that contact between the married couple be supervised to avoid such outcome occurring.
The court accepted the uncontested evidence that this individual had lacked capacity to marry and declarations were granted along such lines. The local authority sought an order that the Official Solicitor should petition for the marriage ?to be annulled. The court found that under the Matrimonial Causes Act 1973, a marriage entered into without one party (or both) having capacity ?to do so made it voidable, rather than void, ?so that the parties to the marriage have discretion on whether to bring it to an end. On the facts of this case, the court held the marriage should not be annulled.

This case emphasises that local authorities ?must be alert and act where such marriages ?are likely (whether by way of application to CoP or by a forced marriage protection order) to avoid some of the tragic consequences which can otherwise arise. SJ

Fiona Scolding is a barrister practising from Hardwicke Chambers