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Court of Protection Update (January 2011)

Sally Bradley, Barrister, of 4 Paper Buildings reviews recent important decisions made in the Court of Protection

Sally Bradley, Barrister, 4 Paper Buildings

Sally Bradley
, Barrister, 4 Paper Buildings

This update looks at recent developments in the Court of Protection in the following areas: 

Deprivation of liberty
In G v E [2010] EWCA Civ 822, the Court of Appeal took the opportunity to offer guidance on the application of Article 5 ECHR in cases concerning vulnerable adults.

E, a 19 year old man, suffered from the rare genetic condition known as tuberous sclerosis, which left him with severe learning difficulties. He had resided with his foster carer, F, for 10 years under section 20 of the Children Act 1989. After turning 18, he remained with F under an adult placement. The local authority subsequently removed E from F's care without seeking the consent of either E or F, or by bringing proceedings in the Court of Protection. E's sister, G, applied to the Court of Protection for declarations that the local authority had unlawfully detained E in breach of his rights under Article 5 and Article 8 and in breach of the Deprivation of Liberty Safeguards (DOLS) under the Mental Capacity Act (MCA) 2005.

Mr Justice Baker held at first instance that the local authority had breached E's Article 5 and 8 rights by removing him from F. However, relying on an interim decision of Ryder J that the detention of E was in his best interests, E's detention could be justified.

The issue for the Court of Appeal was whether the judge had been right to reject G's submission that Article 5 of the ECHR required that distinct threshold conditions be satisfied before a person, who was accepted to lack capacity, could be detained in his or her best interests.

The Court of Appeal rejected G's appeal and gave the following guidance for cases concerning deprivation of liberty.

a) The court is concerned with best interests, not a diagnosis of capacity. While the latter does require medical evidence under DOLS, the question of best interests does not necessarily require medical evidence. G's appeal had conflated these two considerations and had therefore misunderstood the court's role.

b) The Article 5 considerations should not be seen as a separate or prior test before considering best interests. The two should be considered in tandem as the requirements of Article 5 were encompassed in the statutory requirements of the MCA 2005, in particular by the phrase in Section 4, 'all the relevant circumstances'.

c) Article 5 does not impose any threshold conditions which have to be satisfied before a best interests assessment under DOLS can be carried out. That determination should be carried out as soon as Article 5 is engaged.

d) The ECHR jurisprudence relied upon by G concerned alleged mental illness and detention in a psychiatric hospital. In such cases, the Mental Health Act 1983 requires a psychiatric opinion that detention is necessary. However, in the present case, though E was found to lack capacity, he did not suffer from a psychiatric condition. A clear distinction should be drawn between cases of this type, which are common in the Court of Protection, and cases concerning mental illness. As the Court stated in regard to such persons, at paragraph 60:

'They are, of course, 'of unsound mind' within ECHR Article 5, but in our judgment it plainly does not follow either that they are mentally ill, or that ECHR Article 5 requires psychiatric evidence as a threshold to the deprivation of their liberty.  Indeed, learning difficulties often lie outside the expertise of the psychiatrist, but firmly within that of the psychologist.'

Appointing a deputy
The court's power to appoint a deputy, whether to manage the financial affairs or to take welfare decisions on behalf of a person found to lack capacity, is governed by section 16 of the MCA 2005. The court must consider whether or not it is in the protected party's best interests for a deputy to be appointed:

(4) When deciding whether it is in P's best interests to appoint a deputy, the court must have regard (in addition to the matters mentioned in section 4) to the principles that

(a) a decision by the court is to be preferred to the appointment of a deputy to make a decision, and
(b) the powers conferred on a deputy should be as limited in scope and duration as is reasonably practicable in the circumstances.'

Useful guidance on the circumstances in which a welfare deputy should be appointed is provided by the MCA 2005 Code of Practice. Those circumstances are where: 

The circumstances listed in the Code of Practice indicate that the appointment of a welfare deputy will be a rarity in Court of Protection cases. This was reiterated by Baker J in his first instance decision in G v E [2010] EWHC 2512(COP) (Fam). The Judge refused to appoint E's sister as a welfare deputy (a point not specifically appealed to the Court of Appeal), stating at paragraph 57:

'The Act and Code are therefore constructed on the basis that the vast majority of decisions concerning incapacitated adults are taken informally and collaboratively by individuals or groups of people consulting and working together.  It is emphatically not part of the scheme underpinning the Act that  there should be one individual who as a matter of course is given a special legal status to make decisions about incapacitated persons.  Experience has shown that working together is the best policy to ensure that incapacitated adults such as E receive the highest quality of care.'

The case of LD v LB Havering (Case No.1144388/03; 25.6.10) provides a further example of the Court's reluctance to appoint a welfare deputy. HHJ Turner QC, sitting as a judge of the High Court, refused to appoint a welfare deputy despite the recommendations of two social work experts that such an appointment should be made. 

Where it is found that a welfare deputy should be appointed, a member of the protected party's family should ordinarily be appointed unless there is a substantial dispute between family members. This was made clear by Hedley J in Re P [2010] EWHC 1592 (Fam) who stated that where a family member put themselves forward to act as a welfare deputy, 'the court ought to approach such an application with considerable openness and sympathy' (para.9).  This was cited with approval by Baker J in G v E, with the qualification that this 'does not, however, justify the appointment of family members as deputies simply because they are able and willing to serve in that capacity' (para.61).

If a deputy is appointed, the Court will be alive to any conflicts of interest which prevent the deputy acting in P's best interests. In EG v RS, JS and BEN PCT [2010] COP case number 10237109, a solicitor applied to be P's health and welfare deputy, despite the fact that she was also acting for P's sister's estranged husband in contact proceedings. His Honour Judge Cardinal made a costs order against EG, concluding that, although courts should not discourage professionals from seeking appointments as deputies, there should be a limit to such applications. The applicant 'ought to ask himself or herself: am I in any way compromised by my intervention to date?' and 'can I be sure all parties will indeed regard me as a neutral arbitrator?' 

Capacity to consent to marriage and sexual relations
D County Council v LS [2010] EWHC 1544 (Fam) concerned the question of capacity to consent to marriage and sexual relations. The case returned to court a year after the substantive proceedings had been concluded. The council and the OS sought directions on the effect, if any, of the House of Lords decision in R v C (Gary Anthony) [2009] 1WLR 1786 on the original findings.

Wood J had based his original decision in D County Council v LS on the earlier decision of Munby J in MM v Local Authority X [2007] EWHC 2003 Fam. At paragraph 84 of his judgment, Munby J had set out the test to be applied as follows:

'Generally speaking, capacity to marry must include the capacity to consent to sexual relations. And the test of capacity to consent to sexual relations must for this purpose be the same in its essentials as that required by the criminal law. Therefore for present purposes the question comes to this. Does the person have sufficient knowledge and understanding of the nature and character – the sexual nature and character – of the act of sexual intercourse, and of the reasonably foreseeable consequences of sexual intercourse, to have the capacity to choose whether or not to engage in it, the capacity to decide whether to give or withhold consent to sexual intercourse (and, where relevant, to communicate their choice to their spouse)?'

In R v C (Gary Anthony) Baroness Hale had criticised the relatively low test set by Munby J:

'I am far from persuaded that those views were correct, because the case law on capacity has for some time recognised that, to be able to make a decision, the person concerned must not only be able to understand the information relevant to making it but also be able to "weigh [that information] in the balance to arrive at a choice."'

Although R v C (Gary Anthony) was a criminal case, the test to be applied is the same in the criminal and civil contexts, as Wood J restated in D County Council v LS.

Wood J chose not to vary his original judgment on capacity in light of the judgement of the House of Lords, largely because neither the council nor the OS were asking for any variation. He did state, however, that it was necessary in the light of R v C (Gary Anthony) to distinguish between those matters which go directly to a person's capacity to make a choice, and those matters which can only be relevant to a best interests decision (paragraph 40). The two matters should be considered sequentially: first, the factors effecting capacity to choose and, secondly, if the person lacks capacity, the factors relevant to the best interests decision. 

Reporting restrictions
The issue of the reporting restrictions which apply in the Court of Protection was raised in A (by his litigation friend the Official Solicitor) v Independent News Ltd and Others [2010] Civ 343. The OS appealed against a decision to allow the media to report on a hearing of an application by A's family in the Court of Protection. A had severe learning difficulties and was blind. He was a musical prodigy and his story had generated considerable interest from the press and public.

The Court of Appeal upheld the first instance decision to lift the reporting restrictions. The Court restated the general rule that Court of Protection cases should be heard in private. Under Rule 93(1)(a) of the Court of Protection Rules, the restrictions on access and reporting can be lifted if there is a 'good reason' for doing so. The Court held that there was clearly a good reason to lift the restrictions, given the public's interest in the case which was in no way prurient. More generally, as the Lord Chief Justice stated:

'It is valuable for the public to be fully informed of precisely what happens in a court in which the overwhelming majority of hearings are, in accordance with the statutory structure governing its process, to be conducted in private (paragraph 17).'

The Court also offered important guidance on the balance to be struck between Article 8 and Article 10 in considering this issue. The Court suspected that in many cases the consideration of Article 8 would add little, if anything, to the decision of the Court under Rules 90-93. Nevertheless, the Court should specifically consider the Article 8 rights of any party whose private life may in some way be intruded upon (paragraph 24).

In relation to the media's Article 10 rights, Hedley J had held at first instance that they were engaged only after a 'good reason' had been established to lift the reporting restrictions. This was rejected by the Court of Appeal, which held that the media's Article 10 rights were engaged from the time of the media's application for the restrictions to be lifted (paragraph 32). This did not affect the final determination of the appeal.