2014 12 Incapacity

Thursday 1 January 2015

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The Public Guardian v CT (1) and EY (2) [2014] EWCOP 51 (Senior Judge Lush): The court declined to order that the Office of the Public Guardian (OPG) should pay the costs of an application brought by it under its safeguarding functions. CT suffered a stroke, following which the execution by him of a power of attorney and the conduct of his financial affairs gave rise to concerns as to his capacity raised by family members with the OPG. The OPG applied to the Court of Protection. Ultimately CT was found not to lack capacity. Under the normal rule costs would have been paid by CT. The OPG did not seek an order for its costs. EY applied for a costs order against the OPG. It was held that the OPG’s investigation had been proportionate, whereas EY’s conduct had been disingenuous and had unnecessarily increased the costs of the proceedings (including not allowing access for the Special Visitor to CT). EY should pay her own costs. Click here for the judgment.

The London Borough of Tower Hamlets v TB (by her litigation friend, the Official Solicitor) (1) and SA (2)[2014] EWCOP 53 (Mostyn J): The judge reconsidered his previous conclusion on the requirements for capacity to consent to sexual relationships stated in D Borough Council v AB [2011] EWCOP 101. The relevant information as referred to in s 3(1)(a) MCA 2005 comprises (1) the mechanics of the act (2) the fact that there are health risks involved (the most obvious being pregnancy or STDs) and (3) that he or she has a choice and can refuse. TB, a 41 year old woman who suffered from a learning disability, lacked such capacity. The argument on behalf of TB that the court should go no further than granting an interim declaration as not enough practical steps had been taken to help TB gain sexual capacity was rejected Whilst of course a declaration under s 15 is not final in the sense that it cannot be revisited if circumstances change, it was plain that further such work with TB would be futile.

It was not in TB’s best interests to return to reside with her husband, SA, but there should be supported contact between TB and SA. Such contact was important to TB and to SA whose rights in this regard were significant. Best interests must be construed compatibly with Convention rights, particularly the article 8 right to a private life (see s 3(1) HRA 1998) and these rights included those of SA as well as TB.

On the question of whether TB was deprived of her liberty in her supported living placement, the judge acknowledged that his judgment in Rochdale MBCv KW [2014] EWCOP 45 had aroused criticism (.e.g. from the National Autistic Society). By way of further explanation of his decision he referred to Price v UK [2001] ECHR 458 for the principle that a person may need to be treated differently because their situation is significantly different: the basic obligation on the State to secure a person’s essential human dignity. To characterise such measures as State detention, in his view, was unreal.

In the case of TB, although he could not personally see that her situation was a detention other than under the term of art devised by the majority of the Supreme Court, loyally following that decision, and TB being a person who did have the motor functions to achieve a departure in a meaningful sense, he declared that TB was detained under Article 5 and there would therefore be 6 monthly reviews by the court, and observed that even the new streamlined process in PD 10AA would cost huge sums which could be better spent on the front line rather than on lawyers.

The appeal in Rochedale MBC v KW would be heard by the Court of Appeal on 4 or 5 February 2015. Click here for the judgment.

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