2013 10 Incapacity

Friday 1 November 2013

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A Local Authority v ED (by her litigation friend, the Official Solicitor) and Mr D and Mrs D [2013] EWHC 2069 (COP)(Wood J): The judge considered the costs incurred in the case as “an astonishing sum of money”, was “baffled” by the course the litigation had taken and “perplexed” by the lack of clarity in the parents’ case. The parents of ED, a woman in her 30ies who has a learning disability, applied to the court in November 2011 seeking, among other things, the return of ED to the family home. They also raised whether ED’s pubic hair should be removed for cultural/religious reasons. The expert evidence obtained was that whilst there was a duty to do so there was an exemption for those incapacitated such as ED. There was a 5 day hearing in February 2013 and a further hearing set down for 10 days in October 2013. In August the parents stated that they no longer sought that ED be returned to live in the family home but requested an alternative residential placement near the family home. After the judge had spent 2 days reading the papers the case was concluded by consent with ED remaining at her current placement. The quantity of paper in the proceedings had been “inordinate”. The legal costs incurred by all parties were £350,000. Click here for the judgment

A Local Authority v TZ (by his litigation friend, the Official Solicitor) [2013] EWHC 2322 (COP)(Baker J): held that capacity to consent to sexual relations is act specific rather than person specific, (following the cases, Local Authority X v MM and D Borough Council v AB), this being more consistent with respect for autonomy in private life. However, there may be cases where, because the person lacks capacity to make a decision on contact, a relationship with a specific person could nevertheless be curtailed. As regards the level of capacity required, where a person is clearly established to be gay or lesbian it is ordinarily unnecessary to establish that they have an understanding that sexual activity between a man and a woman could result in pregnancy. The weighing up of information should be seen as a relatively straightforward decision balancing the risk of ill health (and pregnancy if the person is heterosexual) with pleasure, sexual and emotional brought about by intimacy. There was a danger that the imposition of a higher standard would discriminate against people with mental impairment. TZ, who had a learning disability, had been helped by a programme of sex education. He had capacity to consent to sexual relations. Click here for the judgment.

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