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Court of Protection Update (September 2013)

Sally Bradley and Michael Edwards, barristers, 4 Paper Buildings, consider three important judgments of the Court of Protection.

Sally Bradley, barrister, 4 Paper Buildings

Michael Edwards, barrister, 4 Paper Buildings









Sally Bradley
and Michael Edwards, both barristers of 4 Paper Buildings

This update deals with:

Capacity to consent to marriage
The latest case in the long line of capacity to marriage cases was heard by Mr Justice Holman in July: Sandwell Metropolitan Borough Council v RG & Ors [2013] EWHC 2373 (COP). The case concerned two brothers, GG (aged 39) and RG (aged 38), of Indian origin. The brothers both had moderate learning difficulties, low intelligence and exhibited challenging behaviour. Their impairments were likely to be lifelong. They lacked capacity to take a range of decisions in their lives, including their care arrangements and contact with others.

The complicating factor in the case was that, in 2009, RG had been the subject of an arranged marriage in the Punjab to SK, who herself suffered from physical problems. SK was not aware of RG's limited intelligence prior to the marriage. RG returned to England following the marriage and was joined in this country by SK in March 2010. SK had been granted leave to remain but she had no recourse to public funds and worked very long hours as a fruit picker. She said in her evidence that she now felt committed to him and that she did love him. She stated that, in any case, it would be impossible culturally for her to ever marry someone else and that, if she were divorced, she would be ostracized in her community.

The issue before the court was the status and continuation of RG and SK's marriage. SK argued that the marriage should not be annulled and that she should be permitted to have sexual intercourse with RG. This was in the face of the medical evidence which indicated that RG had no understanding at all of sexual intercourse. It was conceded on SK's behalf that any sexual intercourse or sexual touching of RG would amount to a serious criminal offence. Nothing in the MCA 2005 alters the position on consent to sexual relations (section 27(1)(b)). Holman J expressly included in the order a declaration that RG lacks capacity to consent to sexual relations.

The court reached the same conclusion, and made a similar declaration, in respect of the marriage itself. That decision, as in every case of this type, was heavily fact specific, based on a thorough inquiry into circumstances of the protected party. The judgment is worth noting, however, for the applications that flowed from the decision. The local authority asked the court to direct that the Official Solicitor file a petition to annul the marriage. The local authority further applied for a declaration of non-recognition of the marriage under the inherent jurisdiction of the High Court. In XCC v AA & BB & CC & DD [2012] EWHC 2183 (COP), Mrs Justice Parker had directed that the Official Solicitor issue a petition of nullity and made declarations of non-recognition. In that case, though, there was no contact whatsoever between the spouses – a very different factual scenario from the present case. Matters were complicated further by the fact that the Official Solicitor did not support a petition for annulment. 

The local authority did not ultimately pursue its application for a declaration of non-recognition. The application depended on RG being domiciled in England and Wales at the time of the marriage. The evidence on this point was limited – what evidence there was indicated that RG's family, and therefore RG as a dependent of his family, in fact retained their domicile in India. This point was also relevant to the nullity argument, though Holman J was prepared to find for the sake of argument that RG was domiciled in this jurisdiction at the date of marriage. As a matter of law, applications for nullity on the basis of a lack of consent fall under section 12 of the Matrimonial Causes Act 1973 ('voidable marriages') rather than section 11 ('void marriages'). Since RG lacked capacity to make decisions on his own, the Court of Protection has discretion to consider whether the marriage was 'voidable'. The guiding principle is section 1(5) MCA 2005 ('best interests') rather than any policy considerations (as the local authority was attempting to argue). The judge concluded, having met with RG, that he should not invite the Official Solicitor to issue a petition for nullity – SK visited RG weekly and obviously took pleasure in those meetings. He used words such as 'wife' and 'marriage' frequently. He reacted badly to words such as 'divorce'. There was no positive benefit to annulling the marriage and there was a very real chance that some harm would be caused to RG. For all of these reasons it would not be in RG's best interests to annul the marriage.

Disclosure of information
In RC v CC [2013] EWHC 1424 (COP)  HHJ Cardinal was asked to determine an application for disclosure of information by the mother of a protected party who had been adopted as a child. The case concerned CC, who had been adopted when about 6-18 months old. She was now 20 and suffered from cerebral palsy and a weakness on the left side of her body. CC's birth mother, RC, applied to the court for an order for indirect contact. She had previously had indirect contact with CC, but this had stopped after the separation of the adoptive couple. It was only the fact of CC's incapacity which enabled RC to make the unusual application in the first place. As part of her application for indirect contact, RC sought disclosure of the psychologist's report and the three social work statements prepared in the proceedings. This was opposed by the Official Solicitor who argued that all of the evidence contained a significant amount of confidential information which was not relevant to RC's application. Only a redacted version of the psychologist's report could be disclosed, the Official Solicitor argued. RC argued that there could not be a fair hearing of her application without the material being disclosed.

HHJ Cardinal weighed up the competing Article 8 considerations in the case as follows:

'37. Is there an article 8 argument in favour of disclosure? It cannot be said that RC's right to respect for family life is being invaded. There is the argument that family life between birth Mother and daughter was severed many years ago. Adulthood does not restore that legal relationship. RC remains the biological Mother of CC but that is all. Now Mr Fullwood drew my attention to the case of Lebbink v The Netherlands [2004] 2 FLR 463 et seq. In that case a decision that there was no family life between a Father and daughter born out of wedlock was a breach of Article 8. The Court said inter alia that the question of the existence of family life was essentially a question of fact. If the relationship was not a potential one, relevant factors included the demonstrable interest in and commitment by the father to the child. But the court did not agree that mere biological kinship without further legal or factual elements should be sufficient to attract the protection of Article 8. Here it is plain that there is not a close personal relationship with CC. RC does not know her. Even the contact by correspondence ended four years ago. The fact of the correspondence cannot be said to have reintroduced some sort of family life for the purposes of Article 8. By contrast CC has a right to respect for family life; to her family life is with her adoptive Father and those she knows now as 'family'. Although the point was not argued before me CC also has a right to respect for her private life, to live outside her biological family.'

The court concluded, on the basis of this analysis, that there should be a direction for non-disclosure of all but a redacted version of the psychologist's report. As for RC's Article 6 rights, the court found that non-disclosure would not hinder RC's application. Her counsel could see the documents, on the basis of an undertaking not to share the contents with RC. This put RC's counsel in exactly the difficult position which he argued he should not be placed in. The court then set out the approach to such applications in future:

i. The rules and the decided cases clearly point to a presumption that there should be disclosure of all documents unless good reason to the contrary are shown - is the withholding of disclosure strictly necessary?

ii. Applying the test of strict necessity involves the judge who is to decide the case reading the unredacted documents and deciding for himself whether or not the documents can be withheld.

iii. In deciding whether or not documents should be so withheld the judge should bear in mind the best interests of [in this case] CC.

iv. In determining best interests the judge should conduct a balancing act, weighing up the competing rights of the parties under Articles 6 and 8 of the European Convention.

v. Having done so the court will direct accordingly but should as in PII cases keep the matter under constant review and invite further submissions if he deems it necessary.

vi. If the judge determines as here that some documents can be disclosed to the advocate and not the party bringing the application he should direct/injunct counsel accordingly.

End of life treatment
An NHS Foundation Trust v M & K
[2013] EWHC 2402 (COP) concerned M, a 22 year old man who suffered from a congenital brain abnormality. His condition had deteriorated significantly since 2010 and had, by the time of the hearing, reached the last stages of his life. The issue before the court was the very difficult question of whether M should go on being treated in intensive care, or whether his treatment should be gradually drawn down. The family and physicians were unable to reach a consensus – hence the matter coming before the Court of Protection.

The NHS Trust responsible for M's care sought the following declarations from the court:

(i) M lacks capacity to litigate and to make decisions in relation to the serious medical treatments at issue in this application;

(ii) It is lawful, and in M's best interests, that the applicant's treating clinicians shall be permitted not to resuscitate him in the event of either a cardiac or respiratory arrest;

(iii) In the event of a serious deterioration in M's health, it is lawful and in his best interests that the applicant's treating clinicians are permitted not to escalate his treatment by way of an admission to ICU, save for a reversible condition;

(iv) Should M's condition further deteriorate such that in the opinion of the treating clinicians he has entered the terminal stage of his illness, it is lawful and in M's best interests for him to receive such palliative care and related treatment, including pain-relief and axiosis until medical supervision is considered appropriate to ensure that he suffers the least distress and retains the greatest dignity until such time as his life comes to an end; and

(v) M should not be resuscitated, should not receive intensive care treatment (specifically that he should not be mechanically ventilated), and should not be given antibiotics in the event of contracting pneumonia again.

Point (i) above was uncontroversial – all sides agreed that M lacked capacity. In respect of resuscitation, (ii) above, Eleanor King J reiterated the test to be applied in such cases as follows: does the treatment secure the therapeutic benefit for the patient, that is to say the treatment must, standing alone or with other medical care, have the real prospect of curing, or at least palliating, the life-threatening disease or illness from which the patient is suffering? In M's case the answer was overwhelmingly, no. All of the medical evidence pointed towards the futility of resuscitation. M would be likely to suffer broken ribs in any such procedure, increasing his discomfort in the final stages of his life. In respect of intensive care treatment, (iii) above, it should only be carried out in the case of immediately reversible conditions. Declarations (iv) and (v) were also made by the court.