2012 11 Incapacity

Saturday 1 December 2012

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RP & others v UK Application no: 3824/08, European Court of Human Rights, 9 October 2012: RP was a woman aged 20 who had a significant learning disability. She gave birth to a child, born prematurely and with many serious medical conditions. The local authority was concerned at RP's ability to understand the baby's needs and, when the baby was four months' old, the local authority commenced care proceedings. It was seeking an adoption order for the baby. RP was assessed as not having the capacity to act and the Official Solicitor was appointed to act for her. Through lawyers the Official Solicitor informed the Court that the local authority's application was neither consented to nor refused and that RP did oppose the orders and believed that her baby should be returned to her care or to the care of her family. After a hearing, the Judge made a care order and a placement order. RP appealed to the Court of Appeal. She was no longer represented by the Official Solicitor. She argued in the Court of Appeal that there had been a violation of her right under Article 6(1) because she had not been informed that the Official Solicitor would be representing her until after the hearing, that the involvement of the Official Solicitor was unlawful as she had had the capacity to instruct her own solicitor, that the correct test for capacity had not been applied and that, if she did lack capacity, a family member should have been appointed as her litigation friend. The Court of Appeal dismissed her appeal. It found that she had been fully informed of the involvement of the Official Solicitor, the correct test for assessing capacity had been applied and that her family members would not have been suitable litigation friends. It also concluded that the Official Solicitor had been right to concede that care and placement orders were in the child's best interests and the judge had been right to make the orders. There had been no violation of RP's rights under Article 6(1). RP was refused permission to appeal to the House of Lords. After some further applications, the County Court made an adoption order in respect of the baby. RP's application for permission to appeal that decision was dismissed by the Court of Appeal. RP complained to the European Court of Human Rights that her rights under Article 6(1) had been violated. Her brother and parents also complained that the Official Solicitor’s had violated their Article 6(1) rights. The brother and parents' application was declared inadmissible as they could not claim to be victims of any violation. The Equality and Human Rights Commission intervened submitting that learning-disabled parents in the UK were more likely to have their children removed from their care than other parents were ad frequently did not receive the support which they needed in order to retain custody of their children. Consequently decisions about the removal of children from learning-disabled parents required very close scrutiny of the support offered to parents and that it was important that strong procedural safeguards existed to ensure that the parent's views were properly fully and fairly advanced before the court. The Court noted that the European Convention is intended to guarantee practical and effective rights, particularly so of the right of access to the court. Article 6(1) leaves to the State a free choice of the means to be used in guaranteeing litigants those rights and the right of access may be subject to limitations. Those limitations must not restrict or reduce the access to such an extent that the very essence of the right is impaired. In a case involving those with disabilities, domestic courts have a certain margin of appreciation to enable them to make the relevant procedural arrangements to secure good administration of justice and protect the health of the person concerned, but such measures should not affect the very essence of an applicant's right to a fair trial. In assessing whether or not a particular measure was necessary a Court will take into account all relevant factors, including the nature and complexity of the issue and what was at stake for the applicant. In the present case, the proceedings were of the utmost importance to RP who stood to lose both custody of and access to her only child. The issue at stake was relatively straightforward but the evidence was not. The Court observed the obvious difficulty an applicant with a learning disability would have in understanding the contents of the medical, psychiatric and other expert reports and the implications of their findings. It had therefore been necessary for the UK to ensure that RP's best interests were presented in the childcare proceedings. A failure to take measure to protect her interests might have announced to a violation of Article 6(1). The Court assessed the appointment of the Official Solicitor, the means by which RP could complain about the appointment and decisions made on her behalf, the information given to her about the Official Solicitor's role and the decisions made by the Official Solicitor. It concluded that the very essence of her right of access to a court had not been impaired. Complaints of violations of Articles 8 and/or 13 were dismissed as manifestly ill-founded. Click here for the judgment.

Dunhill (a protected party by her litigation friend Paul Tasker) v Burgin [2012] EWHC 3163 (QB), (Bean J); the claimant was injured in a traffic accident by the defendant. She brought proceedings in the county court. Those proceedings were compromised on the morning of trial upon judgement of £12,500 for the claimant. Both parties were presented by counsel and solicitors and a consent order was handed in. Some time later doubts emerged about the claimant's capacity. Over six years after the judgement had been ordered by consent, the claimant, through a litigation friend, issued an application in the original proceedings for a declaration that she did not have capacity at the date of the consent order and applying for it to be set aside for directions for the future conduct of the claim. The claim was transferred to the High Court. The application was made under CPR 21.3(4) and 21.10 which provide, respectively, that no step taken before a protected party has a litigation friend has effect unless the court orders otherwise and that settlement of a claim on behalf of a protected party is not valid without the approval of the court. The defendant argued that these did not apply where it did not know of the claimant’s lack of capacity. The Court of Appeal rejected that submission. The CPR did not contain any such provision and so it should be rejected as a matter of statutory interpretation. It should also be rejected for policy considerations. Whilst there is a public interest in certainty and finality of litigation, there is also a public interest in the protection of vulnerable people who lack the capacity to conduct litigation. Click here for the judgment.

Re Clarke [2012] EWHC 2714 (COP) (Jackson J): Mrs Clarke owned her house. She lived there with her son, who was also her carer. The Court of Protection had previously declared her to lack the capacity to make a will. Her deputy wished to sell her home because her income was less than the expenditure required to maintain the house. The application was opposed by her son, who planned to let some of the rooms. The Court decided that it was not in her best interests for her home to be sold. Click here for the judgment.

Re Clarke [2012] EWHC 2947 (COP) (Jackson J): Mrs Clarke’s adult son applied for an order disallowing the usual rule that the costs incurred by the deputy should be charged to her estate. Jackson J refused the application. There was no reason to depart from the general rule. Click here for the judgment.

A NHS Trust v K and Another Foundation Trust [2012] EWHC 2922 (COP) (Holman J): K was a 61 year old woman who lacked capacity, being delusional. She had cancer of the uterus and was refusing treatment. Her three adult sons all wanted her to have the treatment. Holman J heard evidence as to the mortality risks if she were treated, and if she were untreated. He also took into account her general state of physical health, possible alternative treatments, the longer term risk to her psychiatric health, the possibility that she may have to be sedated for the treatment. He concluded that it was overall in her best interests for the doctors to be permitted to carry out the treatment. The judgment contains a useful checklist of benefits and risks. Click here for the judgment.

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