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Court of Protection Update (May 2011)

Sally Bradley, Barrister, of 4 Paper Buildings considers a range of issues that have recently come before the Court of Protection

Sally Bradley, Barrister, 4 Paper Buildings

This update summarises the recent developments in the Court of Protection concerning:

• Deprivation of liberty
• The Court's jurisdiction
• Capacity to consent to marriage and sexual relations
• Media access

Deprivation of liberty
In Re P and Q; P and Q v Surrey County Council [2011] EWCA Civ 190, the Court of Appeal heard an appeal against the decision of Mrs Justice Parker in Re MIG and MEG [2010] EWHC 785 (Fam). Parker J's decision had caused controversy for seeming to blur the distinction between an objective deprivation of liberty and whether the deprivation could be justified. She stated that 'it is permissible to look at the "reasons" why [the protected parties] are each living where they are' in determining whether someone is objectively being deprived of their liberty. She then refused to grant a declaration that the care arrangements for two sisters aged 18 and 19 made by a local authority amounted to a deprivation of their liberty, contrary to Article 5 (ECHR).

The Court of Appeal upheld the decision of Parker J, but on different grounds from those at first instance. The Court reviewed the relevant considerations for the objective test of whether someone is being deprived of their liberty:

a. Objections: a person's objection to being confined and, equally, the absence of any objection is an important factor;

b. Medication: 'the administration to a person of medication, at any rate of antipsychotic drugs and other tranquilisers, is always a pointer towards the existence of the objective element: for it suppresses her liberty to express herself as she would otherwise wish. Indeed, if the administration of it is attended by force, its relevance is increased.' (Wilson LJ, para.26).

c. Purpose: The purpose of the deprivation of liberty is not a relevant factor. Parker J had therefore been wrong to rely on the fact that the purpose of the care package had been to further the girls' best interests. However, the 'relative normality' of the situation under review is relevant (Wilson LJ, para.28).

The decision should mark the end of the controversy surrounding the role of intention and best interests in objectively assessing whether a person has been deprived of their liberty. However, the 'relative normality' test gives the court a wide discretion to determine whether the test is met and may lead to further uncertainty.

In A v A [2011] EWHC 727, the President gave further guidance on the role of the Court of Protection in deprivation of liberty cases. The case concerned an 85 year old man (A) who suffered from dementia and memory and cognitive impairment. He had been discharged from hospital in June 2010 and placed in a nursing home. An urgent authorisation was requested and approved on 30 June 2010.

A objected to the ongoing deprivation of his liberty. The Official Solicitor, acting on A's behalf (in proceedings brought in January 2011), submitted that there should be an up-to-date assessment of A's capacity and best interests. The local authority opposed any further assessment.

The President stated that, had this been a children's case, he would have found in favour of the local authority and brought the matter to a summary conclusion. But the conditions set by the MCA 2005 for depriving a person of their liberty meant that further assessment was necessary:

'I am very conscious that the Act has laid down stringent conditions for the deprivation of liberty, and that the court cannot simply act as a rubber stamp, however beneficial the arrangements may appear to be for the individual concerned. In the instant case, A wishes to challenge the authorisation which deprives him of his liberty. Parliament has decreed that he should be entitled to do so, and has created safeguards to protect those deprived of their liberty against arbitrary action.' 

The Court's Jurisdiction
There are clearly overlaps between the remit of the Court of Protection and that of the Family Division and Administrative Court. Two recent cases have shed some light on where the boundaries of the three jurisdictions lie.

The public law function of the Court of Protection was raised in A Local Authority v PB [2011] EWHC 502 (COP), in particular the jurisdiction of the Court to review a best interests decision taken by a local authority. The case concerned a man in his forties (P) with severe leaning difficulties and other disabilities. P had been well looked after by his parents throughout his life, but was taken into a residential home after an incident to which the police had been called. P's mother asserted that he should live at home with a support package provided by the local authority. The local authority refused to provide any such package.

Human rights and other public law challenges to the decisions of local authorities which arise in family proceedings are generally dealt with 'within the four walls' of the welfare jurisdiction of the Family Division. In A Local Authority v PB, Charles J did not express a definitive view on the jurisdiction of the Court of Protection in challenges of this kind. The jurisdictional questions in the case would be deferred to a further hearing. He did state, however, that the public authorities involved, including the local and health authorities, the Official Solicitor and the court, needed to be aware of these jurisdictional issues at an early stage to 'ensure that the Court of Protection is not utilised for an inappropriate purpose' (para.29).

Charles J then went on to take a swipe at the way in which parties in the Court of Protection failed properly to identify the factual and legal issues in the case:

'To my mind, it is contrary to the interests of the parties and the public interest that cases of this type should be conducted as, in effect, a voyage of discovery, by the courts and the parties, by reference to generalised and descriptive witness statements, which make and raise in various ways a range of allegations, some of which are extremely serious.' (para.38)

To avoid such 'voyages of discovery', Charles J stated that parties in all welfare cases in the Court of Protection should serve on the other parties a document setting out:

1. The facts which the party will ask the Court to find, the disputed facts which the court need not determine, and the findings which he/she asks the court to make in relation to the facts found.

2. The investigations he/she has made of alternatives for the care of P.

3. The factors which the Court should take into account in reaching its conclusions.

4. The relief sought by the party and, with reference to the relevant factors, why those factors support the granting of the relief sought.

5. The relevant law. 

In B (A Local Authority) v RM (2010) EWHC 3802 (Fam), Hedley J gave guidance on the circumstances in which cases in the Family Division should be transferred to the Court of Protection. Such transfers are governed by the Mental Capacity Act 2005, Transfer of Proceedings Order 2007 /1899, in particular Article 3. The matters to which the court should have regard in any application for transfer to the Court of Protection are, per Hedley J at para.28:

'One, is the child over 16?  Otherwise of course, there is no power.  Two, does the child manifestly lack capacity in respect of the principal decisions which are to be made in the Children Act proceedings?  Three, are the disabilities which give rise to lack of capacity lifelong or at least long-term?  Four, can the decisions which arise in respect of the child's welfare all be taken and all issues resolved during the child's minority?  Five, does the Court of Protection have powers or procedures more appropriate to the resolution of outstanding issues than are available under the Children Act?  Six, can the child's welfare needs be fully met by the exercise of Court of Protection powers?  These provisional thoughts are intended to put some flesh on to the provisions of Article 3(3); no doubt, other issues will arise in other cases.  The essential thrust, however, is whether looking at the individual needs of the specific young person, it can be said that their welfare will be better safeguarded within the Court of Protection than it would be under the Children Act.'

Capacity to consent to marriage and sexual relations
The question of the test to be applied in determining whether a person can consent to have sexual relations arose again in D Borough Council v AB [2011] EWHC 101 (COP) before Mostyn J. The case concerned a 41 year old man, Alan, with 'moderate' learning disabilities. Alan had commenced a relationship with a man called Kieron, with whom Alan lived. The local authority sought a declaration from the Court that Alan lacked capacity to consent to sexual relations and an order restricting contact between Alan and Kieron.

In MM v Local Authority X [2007] EWHC 2003 Fam (dealt with in the previous edition of this CoP update), Munby J had defined an act-based test for capacity:

'does she have sufficient rudimentary knowledge of what the act comprises and of its sexual character to enable her to decide whether to give or withhold consent?'

This approach had been thrown into doubt by the House of Lords decision in R v C (Gary Anthony) [2009] 1WLR 1786, which had criticised without overruling the test based simply on whether the person understands the nature of the sexual act. The courts should look to whether a person can actually weigh the consequences of what they are being asked to do. In D County Council v LS [2010] EWHC 1544 (Fam), Wood J had attempted to find a compromise approach by incorporating a partner-based as well as act-based element into the test.

This was rejected by Mostyn J in D Borough Council v AB:

'I do think, with the greatest possible respect, that there has been a conflation of capacity to consent to sex and the exercise of that capacity. There is also a very considerable practical problem in allowing a partner-specific dimension into the test. Consider this case. Is the local authority supposed to vet every proposed sexual partner of Alan to gauge if Alan has the capacity to consent to sex with him or her?' (para.35)

So, the act-based definition of capacity to consent to sexual relations, drawn from Munby J but developed by Mostyn J, requires the person to have an awareness and understanding of:

a) The mechanics of the act;
b) That there are health risks involved, particularly the acquisition of sexually transmitted and sexually transmissible infections; and
c) That sex between a man and a woman may result in the woman becoming pregnant.

Applying this test to Alan's case, the Court found that he failed all three criteria in relation to heterosexual sex and that, for homosexual sex, he failed the second criterion. Protective measures would therefore be put in place and the Court made an interim declaration that Alan lacked capacity. The local authority was ordered to provide sex education classes to Alan in the interim in the hope that he would gain capacity. The local authority had been seeking a final declaration: leave to appeal has been granted to the local authority. The Court of Appeal may well be called upon to provide further guidance on an issue which continues to cause controversy.

Media Access
The Court of Protection has faced the same accusation as the Family Division from certain parts of the press: that it is a secret court, handing down draconian judgments without proper scrutiny. The general rule, set out in Rule 90(1) of the Court of Protection Rules 2007, is that proceedings in the Court of Protection are held in private. However, the Court has been increasingly willing to exercise its power under Rule 90(3)(a) to authorise any person or class of persons to attend a private hearing and under Rule 92(1) to allow the hearing to be in public..

In LB of Hillingdon v Neary [2011] EWHC 413 (COP) Mr Justice Jackson allowed the press to attend and identify the parties. The case concerned Steven Neary, a 20 year old man with autistic spectrum disorder and severe learning disability. In December 2009, Steven had been placed in the care of the local authority for a few days' respite, with his father's agreement. At the end of the respite period, the local authority came to the view that it would not be in Steven's best interests to return to the care of his father. Steven remained in the care of the local authority until December 2010.

The father and the Official Solicitor argued that the local authority's refusal to allow Steven to return home was unlawful. A final hearing is listed for 23 May 2011. The matter came before Jackson J on the preliminary issue of whether the press should be allowed to attend.   

Jackson J approved the two-stage test set out by Hedley J in Independent News and Media v A [2010] EWCA Civ 343. First, the Court should ask whether there is a 'good reason' to make an order to allow the media to attend. Secondly, if there is a 'good reason', the Court should then decide whether the requisite balancing of Article 8 and Article 10 justifies the making of the order.

The media offered three arguments as to why there was a 'good reason' that they should be allowed to attend:

'(1) Firstly, there is a public interest in the work of the Court of Protection, and the way it uses its considerable powers to make orders which affect the lives of vulnerable citizens.

(2)  Secondly, in this case it is alleged that the rights of Steven and of his father were seriously infringed for a prolonged period by the decision of the local authority to prevent Steven returning home after the intended period of respite.

(3)  Thirdly, the issues now before the court have to some extent already been aired in the public domain, and the parties to the proceedings have been named.  Steven's case was featured in his local newspaper, the Uxbridge Gazette, in July 2010.  It was then covered by the BBC in August 2010 on Radio 4's "You and Yours" and on BBC London News.  It has more than once been featured in Private Eye.  An online petition for Steven's return, launched by Mr Neary, generated some 8000 signatures.'

On the basis of these arguments, Jackson J had no hesitation in finding that the 'good reason' limb was satisfied.

On the balancing exercise, the Court found that the fact that the names of the parties were already in the public domain and that there was no evidence that there would be any detriment to the parties from being under the media spotlight, weighed in favour of allowing the media to attend. All applications of this type will of course turn on their own facts, though Jackson J did offer some important guidance on the considerations for the Court. To summarize: 

1) Hearings before the Court of Protection should be held in private unless there is good reason why they should not be. 

2) On the other hand, the scheme of the rules explicitly contemplates cases where hearings will not be conducted in private, even to the extent that it specifically permits the court to sit in public, something that has not been suggested in this case. 

3) Publicity can have a strong effect on individuals, particularly if they are not used to it, or if, like Steven, they are vulnerable to anxiety and to changes in their environment.  Any evidence that suggests a real possibility of a detrimental effect from publicity must weigh heavily.

4) There is a genuine public interest in the work of this court being understood.  Not only is this healthy in itself – the presence of the media in appropriate cases has a bracing effect on all public servants, whether in the field of social services or the law – but it may also help to dispel misunderstandings. 

5) The ability of the media to participate need not be limited to cases involving extraordinary individuals. The question is not whether the individual is exceptional, but whether the issue is one of genuine public interest.

6) A distinction can be drawn between cases which have not been in the public eye and those which have, to a greater or lesser extent.  In the former case, if the proceedings are conducted in private, there may very well be no story.  In the latter case, the proceedings do not create the story, and the question is whether the media should be allowed to follow its continuation in court.

7) Once the parties' names are publicly attached to the proceedings, the court's ability to control that information is lost.  Accordingly, parties should not be named at the outset where any real possibility can be foreseen of the balance falling the other way at the end of the proceedings. 

8) On the other hand, it is in no one's interests for proceedings to be stultified by the withholding of information that is already in the public domain.