2013 08 Incapacity

Sunday 1 September 2013

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A NHS Trust v DE (by his litigation friend, the Official Solicitor) and FG and JK and C Local Authority and B Partnership Trust [2013] EWHC 2562 (Fam) (Mrs Justice Eleanor King DBE): A declaration was granted that it was lawful and in the best interests of DE, a learning disabled man, to undergo a vasectomy and for the NHS Trust to take reasonable and proportionate steps that were medically advised to perform it, which may include sedation, local or general anaesthesia. DE had a longstanding relationship with his girlfriend with whom he had had a child. He had a genuine and settled desire not to have more children. DE had capacity to have sexual relations but he lacked capacity to consent to contraception and to decide whether to have a vasectomy. If reliance were placed on alternative contraception, the risk of his girlfriend becoming pregnant would be substantial, which would cause deep distress for DE and could result in the relationship with his girlfriend, which was of great importance to him, breaking down. If there were no vasectomy, restrictions would continue to be imposed on him to avoid the risk of unprotected sex, which dramatically curtailed his independence. DE’s right to respect for family life under Art 8 was not violated by a decision that would reduce the likelihood of him becoming a genetic father in the future. His right to private life under Art 8 was engaged. The approach in K v LBX [2012] EWCA Civ 79 to deciding on best interests was adopted. Article 8 ECHR and Article 23 of the United Nations Convention on the rights of Persons with Disabilities were not a starting point but those Articles could properly be considered in the context of the best interests appraisal under s 4 MCA 2005. A list of factors as to how s 4 MCA 2005 should be applied, deriving from previous court decisions, was set out (paragraph 84). Click here for the judgment.

Pearce v Beverley Case No. 1LS 52142, Leeds County Court, 13 August 2013 (HHJ Behrens): The claimant’s father had formed a close friendship with the defendant, when his health was in decline. He had placed trust and confidence in her in relation to his financial affairs. He executed a will which made her the sole beneficiary of his estate, to the exclusion of the claimant and other members of his family. Shortly before the will was executed, a solicitor had expressed doubts as to his capacity and his medical records indicated difficulties with memory and understanding. The defendant had been present throughout the interview with an employee of The Will Writing Company which preceded the execution of the will. Re Key [2010] EWHC 408 stated the test for testamentary capacity, including the evidential requirement, where there are circumstances that excite the suspicion of the court, to affirmatively prove knowledge and approval. The test was not replaced by MCA 2005. There was a real doubt as to testamentary capacity and the defendant had not discharged the burden on her of satisfying the court that there was capacity. Therefore the will was not validly executed. Also, the transfer of the claimant’s father’s property into joint names with the defendant was set aside as procured by the defendant’s undue influence.

NCC v WMA and MA [2013] EWHC 2580 (COP) (HHJ Cardinal): WMA was a 25 year old man, with a diagnosis of atypical autism and a pervasive development disorder. He lived with his mother, MA. The local authority, NCC, applied for an order that his best interests would be served by moving him to supported living accommodation. HHJ Cardinal allowed the application. He found that the local authority had been unable to provide appropriate care for WMA and his mother at their home because of their behaviour, that WMA lived an isolated lifestyle, their home was kept to a very low standard of cleanliness and there was a plain history of neglect of WMA by MA. He found on the medical evidence that WMA lacked capacity to decide where he should live. He considered WMA’s best interests taking into account Article 8. He considered WMA’s wishes and feelings, which were to remain with his mother, and decided that those wishes and feelings could not be accommodated. He also took into account MA’s views. Having concluded that it was in WMA’s best interests to move to supported living accommodation, he cross-checked that conclusion applying Article 8. He found that moving WMA to the home would be a deprivation of liberty and made an order to that effect. He also considered and approved the transitional plans put forward by the local authority to facilitate the move. The judgment is a useful example of the evaluative exercise required under the MCA. Click here for the judgment.

Sandwell Metropolitan Borough Council v RG and GG and SK and SKG [2013] EWHC 2373 (COP) (Holman J): RG and GG were brothers, aged 38 and 39 respectively. They both had moderate learning difficulties and lived in local authority accommodation. SKG was their mother. SK was RG’s wife. The family were Sikhs, living in the UK. It was accepted that both brothers lacked capacity to make a range of decisions as to where they should live, their care packages, and their contacts with others. The contested issue was the status of RG’s marriage. RG had been taken to India in 2009 where he had participated in an arranged marriage ceremony with SK. RG and SK had consummated the marriage. Ten days after the marriage, he returned to the UK and SK travelled to the UK a year later. SK accepted that RG did not have the capacity to consent to sexual intercourse and that she would be committing a criminal offence if she had any form of sexual intimacy with him. However, SK wanted to remain married to RG. After hearing medical evidence, the Court declared that RG lacks and had lacked the capacity to consent to or contract a marriage under English law. The local authority submitted that it would be in the best interests of RG either for the Official Solicitor to issue a petition of nullity or for the Court to declare that the marriage is not recognised in England and Wales. A declaration of non-recognition could only be made if RG was domiciled in England at the date of the marriage and the evidence as to his domicile was unclear. A declaration was refused. The Court also declined to order that it would be in RG’s best interests for the Official Solicitor to issue a petition of nullity. Even though no registrar in England, appreciating RG’s lack of capacity, would have conducted the marriage, RG understood that he was married to SK and wished to remain married to her. SK’s position, that a divorce or annulment would lead to her being ostracised in the Sikh community, was relevant in so far as it did not seem likely that RG would wish that to happen to her. There were few positive benefits from annulling the marriage, and the pleasure that RG gained from the marriage and the relationship was relevant. The Judge emphasised that this decision was highly fact-specific. Click here for the judgment.

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