2012 05 Incapacity

Friday 1 June 2012

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DL v A Local Authority & others [2012] EWCA Civ 253 CA (Maurice Kay LJ, McFarlane LJ and Davis LJ): Mr and Mrs L were the elderly parents of DL, who was in his 50s. Mrs L was physically disabled. The Local Authority was concerned about DL's alleged conduct towards his parents, said to be aggressive, controlling and on occasions involving physical violence. An application to the Court of Protection was not available because none of the individuals lacked capacity. The Local Authority sought an order under the High Court's inherent jurisdiction for an injunction restraining DL from certain behaviour towards his parents. The issue was whether the High Court had that inherent jurisdiction. DL argued that the Mental Capacity Act had established a comprehensive scheme and had displaced the inherent jurisdiction. At first-instance Theis J had rejected that submission and held that the inherent jurisdiction to protect adults had survived the passing of the MCA. The Court of Appeal upheld her judgement and dismissed DL's appeal. The MCA only related to adults who lack capacity. The inherent jurisdiction is a safety net aimed in part at enhancing or liberating the autonomy of a vulnerable adult whose autonomy has been compromised by reason other than mental incapacity, because he or she is under constraint, subject to coercion or undue influence or for some other reason deprived of the ability to make a free choice or express real and genuine consent. Click here for the judgment.

Seaton & others v Seddon & others [2012] EWHC 735 (Ch) (Roth J): the five Claimants had been members of a band called Musical Youth who had had some commercial successes in the early 1980s when they were all aged under 18. The claim, issued in 2010, was against solicitors, music producers and others and alleged various breaches of trust and copyright infringements arising from events in the early 1980s. The issue of limitation arose. The fourth Claimant lacked capacity to conduct the proceedings. The issue was whether the limitation period expired six years after his eighteenth birthday or whether, if he was under a disability by reason of lacking capacity at the date of his eighteenth birthday, time would not start to run on that date. The Judge held that if, on a person's eighteenth birthday, he or she is still under a disability, albeit a different disability from that which applied when the cause of action accrued, it would be inconsistent with the statutory purpose for the running of the limitation period to commence nonetheless. He also held that the relevant definition of disability for the purpose of limitation should be determined under the law as it stood when the proceedings were commenced, so that the fourth Claimant would have to show that he was of unsound mind, rather than the MCA test of lacking capacity. On the facts, the fourth Claimant did not have a sufficiently arguable case that he met the statutory criteria for disability by reason of unsound mind on his eighteenth birthday. The Judge added that even if he was wrong on that point, the fourth Claimant would then have to show that he remained under a disability continuously until a date six years before the issue of the claim and the evidence was wholly inadequate to support that conclusion. Click here for the judgment.

ZH (a protected party by GH his litigation friend) v Commissioner of Police for the Metropolis [2012] EWHC 604 (QB) (Sir Robert Nelson): ZH was a 19-year old who was severely autistic and epileptic. Whilst on a school visit to a swimming pool, he became fixated with the water and would not move from the edge of the pool. The police were called. When an officer touched him on his back he jumped into the water, fully clothed. The police had him taken out of the pool, restrained him and he was placed in handcuffs and leg restraints, soaking wet, in the back of a police van. It was agreed that he suffered consequential psychological trauma and an exacerbation of his epileptic seizures. He brought proceedings against the police for damages for assault and battery, false imprisonment, disability discrimination, and breaches of Article 3, 5 and 8 ECHR. The Judge held that the MCA applied to the police's dealings with him. Some of the police officers were aware of the MCA and others not. It was not necessary for them to have in mind the specific sections or even the Act itself. The MCA applied if they believed that the Claimant lacked capacity to deal with and make decisions about his safety, that when they carried out the acts that they did, they believed that he so lacked capacity and that they believed that it was in his best interests for them to act as they did. A belief that the situation created a need for them to act in order to protect his safety and prevent him from severely injuring himself would be sufficient to satisfy the MCA, provided that the belief was reasonable and a proportionate response. They were also required to have considered whether there might be a less restrictive way of dealing with the matter and, if practicable and appropriate, to consult the Claimant's carers. The Judge also held that where the provisions of the MCA apply, the common law defence of justification has no application. On the facts, the police could not establish that the police had complied with the MCA. Claimant's claim for damages was allowed and total damages assessed at £28,250. Click here for the judgment.

A Local Authority v H (by her litigation friend the Official Solicitor)[2012] EWHC 49 (COP) (Hedley J): H was a 29-year old woman who had been admitted to psychiatric hospital since August 2009 and, at the date of the hearing, lived in supervised accommodation which she was not permitted to leave unless supervised. She had mild learning difficulty and atypical autism with a low IQ and lacked capacity to litigate, to determine her residence, her care and support arrangements, contact with her family and her finances. She was highly sexualised and vulnerable. Before she was admitted to hospital, at least one man had been convicted of an attempted rape against her. She had given her psychiatrist an account of sexual activity that amounted to rape in one respect and could be seen as exploitative of her. The Judge considered s.3(1) MCA when deciding whether she had the capacity to consent to sexual relations. He found that, for a person to understand the relevant information, a fairly rudimentary knowledge was all that was required; it was sufficient to understand that sexual relations may lead to significant ill-health and that those risks can be reduced by precautions like a condom. It was no part of the test that a person might understand the moral aspects of human sexual relationships. It was also necessary for a person to understand that he or she has a choice and can refuse sexual relationships. The test as to whether a person is capable of using and weighing the information meant, in this context, whether he or she was able to deploy the general knowledge of sexual relations into a specific decision-making act. Having applied those tests, the Judge found that H did understand that she had a choice, albeit that she had difficulty in saying no to sexual relations, but did not appreciate the health issues arising and could not deploy the information that she had effectively into the decision-making process. Accordingly she lacked capacity to consent to sexual relations. Although H showed no immediate disposition to marry, it followed that a person who lacked capacity to consent to sexual relations must also lack capacity (although he declined to make a formal declaration to that effect). There was to be a review of her best capacity and best interests in September 2012. Click here for the judgment.

Official Solicitor Note (21 February 2012): the Official Solicitor has notified the Court of Protection of his current general position when invited to act as litigation friend in Court of Protection healthcare and welfare cases. He reaffirms that his long-standing acceptance criteria are:

§ That there is evidence or the Court has made a finding that the party or intended party lacks capacity to conduct proceedings or is a child or, in Court of Protection proceedings, there is evidence or a finding with regard to the person’s lack of relevant decision-making capacity;

§ There is no one else suitable and willing to act as litigation friend; and

§ There is security for the costs of legal representation unless the case falls in one of the classes in which he exceptionally funds the litigation in accordance with long-standing practice.

Due to having reached the limit of the OS’s staff resources, the OS can only accept invitations to act in the most urgent cases namely serious medical treatment and s.21A MCA 2005 appeals. All other cases which meet the acceptance criteria are being placed on a waiting list and accepted when a case manager becomes available in chronological order. If the Court is of the view that a case should be considered as most urgent or should be expedited for other reason, it should inform the Senior Lawyers in the OS’s CoP Healthcare and Welfare teams of the court’s reasons. Click here for the full note.

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