2011 02 Incapacity

Tuesday 1 March 2011

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D Borough Council v AB [2011] EWHC 101 (COP) (Mostyn J): the test for deciding whether an adult had the capacity to consent to sexual relations was whether he or she understood the mechanics of the act, that there were health risks involved and (where applicable) that sex between a man and a woman might result in the woman becoming pregnant. It was not necessary that he or she understood the emotional, moral or legal aspects, for example that sex should be consensual and between persons aged over 16. AB did not have capacity to consent to sexual relations currently but would be provided with sex education to see if he could develop capacity. Click here for the transcript.

G v E (by his litigation friend the Official Solicitor), Manchester City Council & F [2010] EWHC 3385 (Fam) (Baker J): By virtue of Rule 157 of the Court of Protection Rules, the general order in personal welfare proceedings under the MCA 2005 is no order as to costs. However, costs orders are permitted under Rule 157, and indemnity costs orders are permitted under Rule 158 and CPR 44. In this case, the local authority was ordered to pay the other parties’ costs, and on an indemnity basis, up to the first day of the first trial, when it conceded that it had deprived E of his liberty, because it had blatantly disregarded the DOL procedures in the Act and its obligation to respect E’s rights under Articles 5 and 8 of the ECHR, so that there had been “a significant degree of unreasonableness” in its conduct. The local authority was ordered to pay one third of the subsequent costs on the standard basis. Click here for the transcript.

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